Beyond the diehards who believe that there is no limit to what must be done to stop Trump from being Trump, the question of undermining legal doctrine for this purpose at the risk of creating new legal doctrine that will prove disastrous to future presidents and their ability to exercise the authority of their office looms huge. For the shallow, this is easily misunderstood as not hating Trump enough. But it has nothing to do with Trump and everything to do with law.

Are we prepared for forsake the legitimacy of law and precedent to get this guy?

In the New York Times, Cardozo lawprof Kate Shaw seeks to create the “conceptual ledge,” that rational stopping point that prevents the slide down the slippery slope into oblivion.

What weight, if any, should the words of a United States president have in court? It’s not a question the Supreme Court has ever answered. But if the Trump administration asks the court to hear this case, and the court agrees to do so, the outcome will almost certainly turn on this issue.

The Fourth Circuit’s travel ban ruling does something never before done: it goes behind the facially lawful exercise of authority by a president and condemns it as unconstitutionally motivated based on the statements of a candidate and his “surrogates.” There was no denial that the president has the authority to do as Trump did:

During oral argument, the question was put to ACLU lawyer Omar Jadwat by Judge Paul Niemeyer:

“We have a candidate who won the presidency, some candidate other than President Trump won the presidency and then chose to issue this particular order, with whatever counsel he took,” Niemeyer said. “Do I understand that just in that circumstance, the executive order should be honored?”

“Yes, your honor, I think in that case, it could be constitutional,” Jadwat admitted.

For all the passion reflected by Judge Gregory’s powerful opening, this remains the problem.

For the non-lawyers, the question isn’t what you think the law should be or how horrifying Trump is, but the lack of adherence to precedent here. In other words, the Court has previously ruled that it won’t look behind the curtain when the president exercises facially legitimate authority. The Fourth Circuit has chosen to ignore precedent because this time it’s different. This time it’s Trump.

I believe the correct view is that the speech of a candidate or even a president should not ordinarily be relevant to a court’s determination of the meaning or lawfulness of government action. This is especially true when the words of the president conflict with executive-branch positions offered in other, more authoritative settings and documents.

Shaw agrees with the precedent, though “not ordinarily” isn’t exactly a clear line in the sand.

But there is an exception to this rule: namely, when presidential speech supplies evidence of intent or purpose of established legal relevance — for example, when assessing a claim of religious discrimination. Thus the Fourth Circuit was right to rely on Mr. Trump’s words in rejecting the administration’s effort to revive its travel ban, and the Supreme Court should follow suit.

Is this meant as a general exception or a Trump exception? No matter. Either way, it’s unavailing. Shaw offers the argument in opposition to her exception:

The judges who have objected to using Mr. Trump’s words against him in the travel ban litigation have been motivated by such concerns. Alex Kozinski, a judge on the United States Court of Appeals for the Ninth Circuit, which in February affirmed an order halting the initial travel ban, took particular issue with his colleagues’ use of campaign speech, noting that “the panel has approved open season on anything a politician or his staff may have said.”

One can cherry-pick a candidate’s words to show motive. It may be accurate or merely obstructionist, but candidates say things to get elected. They pander. They appeal to whatever they feel necessary to obtain the goal of getting elected. Their words may conflict, be vague and incomprehensible, or just be foolish. That’s the nature of campaigning. Pick through the rubble and one can construct a cogent argument that they’re ill-motivated when they are elected in the exercise of their authority.

It may end up, as in Trump’s case, that the words are sufficiently consistent and misguided to support a sound claim to improper motive, but that doesn’t limit people or states who oppose a president’s policies from trying. There are a lot of federal judges out there, and they only need one to issue a nationwide injunction to shut down the otherwise lawful actions of a co-equal branch of government. It may eventually be reversed, but in the meantime, it’s enjoined.

But can this be excepted where a candidate’s words are “of established legal relevance”? That line is far too vague, far too thin, to be of much use as a conceptual ledge.

Giving decisive weight to all presidential statements would be a bad idea. It would unduly empower the president, allowing him to circumvent internal executive-branch processes, and it would also unduly disempower him, preventing him from speaking freely about topics that might have litigation consequences. Each effect would be problematic, whether we’re talking about President Trump or any other president.

Every topic has litigation consequences to somebody. We disagree about a lot of things, and that’s fine. We’re litigious, and that’s less fine, but lawfare has become the method of fighting policy these days.

But what about a president changing his mind, as Obama did about gay marriage? What about plain vanilla pandering to a crowd to get their vote? Politicians say things they don’t mean, make promises they can’t and won’t keep. Should they be sued for breach of promise? They learn things in office that they didn’t know when running. Should the president not evolve?

In the case of the travel ban, however, given the relevance of Mr. Trump’s words to determining its purpose, the courts can rule that the president’s speech is germane in this particular instance — without opening Pandora’s box.

This is where TrumpLaw meets Gertrude, the special relevance of Trump’s words as opposed to the problematic relevance of any other president. Legal relevance is broad and vague, a largely rhetorical concept, the tendency to prove or disprove a material fact.

Were Trump’s words relevant? You bet, at least to the extent one imputes any meaning to a guy whose ability to express himself comprehensibly falls below a fifth grade level. But every candidate’s words are relevant to something, and will make great ammunition to paralyze the executive branch.

To get Trump this time, future presidents will be the targets of constant legal attacks on their motives and stymied in the exercise of the authority of the office. Is stopping Trump worth disempowering all future presidents from doing their job? Are we better off having executive decisions subject to the cherry-picked approval of an Article III judge? If “relevance” is the best we can come up with to create a conceptual ledge, we’re in for a long, slippery ride to oblivion.