Trump’s blunderbuss of an executive order re: immigrants and refugees could well have serious adverse effects — but not the ones its opponents imagine. Whatever the wisdom of that order, the manner and timing of its implementation were evidence of a Not-Ready-for-Prime-Time playacting presidency. As many of us feared from the get-go, President Donald Trump seems to have little idea of how to conduct himself in the nation’s highest office. Farming out critical decisions to a small group of amateurs in his circle, he has blasted his way into the White House and is now lobbing policy grenades and twitter bombs from the Oval Office. This isn’t the way to govern.
With the Washington State judge’s ruling over the weekend imposing a stay on Trump’s executive order halting immigration from seven countries, and staying Trump’s halt to the refugee program, we are being pushed toward a constitutional crisis in the very first weeks of the Trump administration — a crisis which didn’t have to happen. On the merits, the president’s executive order has every appearance of being legal. Yet its clumsy roll-out and lack of support across large swaths of the nation, and its blunderbuss implications for the nation’s immigration policies, make it hard to defend.
With the next court in line to hear the government’s appeal being the famously liberal Ninth Circuit and President Trump tweeting madly about bad judges in response to the stay, the odds are increasing that that appeals court will not side with the administration. Next stop, the Supreme Court where there is a four to four balance between liberal and conservative justices and little chance of changing that on short notice, given Senate Democrats’ apparent decision to fight the confirmation of the president’s eminently qualified Supreme Court nominee, Judge Neil Gorsuch. If anything, this case increases the likelihood of Democrats pushing to drag out the Gorsuch confirmation since the longer they can keep him off the court, the more cases they can hope to see decided in “their” favor. Absent a tie-breaking ninth justice on the bench, the Supremes could well split 50-50 on the matter of the immigration and refugee executive order, allowing the lower court ruling to stand.
But that ruling was wrong, not least because it injects the judiciary into foreign policy and national security questions where, under the Constitution, the president has primacy. The case against the president’s use of the executive order in the present situation is a weak one on numerous counts, from the question of the standing of the plaintiffs (they lack that) to the ruling judge’s failure to make a case for his decision in his own opinion. By law and constitutional prerogative, the president has the power to issue the executive order in question, even if it may have been an unwise one.
That unwisdom and the furor the order stirred up across the nation, because the country and its institutions were unprepared for it by the Trump administration — which failed to do the usual advance work preparatory to implementing such a far reaching policy change — give the policy question primacy in the public mind. But the real question should be whether or not presidents are within their power to determine who may or may not enter the country for national security reasons.
The judges in the case as it wends its way up the judicial appeals ladder, particularly those with a liberal bent, are likely to be swayed by the spectacle of a president acting recklessly to implement controversial policies which upend the cultural fabric of 21st century America. We have already seen a broad response by lower courts across the country rejecting parts or, in the case of the Washington judge, all of the executive order on immigration.
If President Trump can’t secure a reversal quickly the dispute is liable to drag on, further inflaming passions and eroding his already shaky popularity in the broader population. While the president’s hardcore fans are unlikely to be swayed, and will probably only harden their support for the executive order and the president who issued it, the rest of the country seems to be peeling away from the new president, eroding the goodwill any president needs to make a success of his term in office.
Worse, an outright constitutional crisis now seems in the offing since a failure to overturn a stay that intrudes on the president’s constitutional prerogatives seriously weakens future presidents as well as the constitutional norms which guide us. No president is likely to take that lying down and certainly not one as combative as Mr. Trump. Finally, to the extent that national security DOES depend on a vigilant and effective chief executive able to get and keep control of the nation’s borders, an executive order intended to do that (well conceived or not) which has been left in shambles will only weaken such efforts — for this president and his successors.
Donald Trump’s impetuous lurch to impose a halt on refugees from war torn parts of the Middle East and to temporarily ban foreign aliens from seven nations in that part of the world from coming here, has already done more damage than good. And if he keeps up his twitter wars with the courts it will further erode his approval ratings and set the country up for a swift turn to the left again in the next set of elections.
At the same time it further complicates the effort of his administration and allies in the Senate to get his nominee, Neil Gorsuch, onto the Supreme Court which would enable speedy and definitive resolution of these kinds of disputes going forward.
A smarter Trump team would have held its fire until Judge Gorsuch was in place and built up a broad consensus for the kinds of policies President Trump believes essential to national security before rushing to draft and impose an executive order on the nation which gives executive orders a bad name. Just as important, a wiser Trump team could have trimmed its own policy sails in reaction to reasonable feedback from others around the country had it first opened a dialogue with the nation as a whole about the need — if, indeed, they could have made the case that there was one — for this sort of approach to homeland security.
Instead President Trump, eager, as always, to “get things done” just two weeks into his new administration and all too typically heedless of the mechanics and norms of presidential behavior — and, perhaps, as some have suggested, farming out too much of the details of his policy agenda to what is looking increasingly like a Keystone Kops assemblage of advisors — rushed an action that demands caution and care in development and execution.
It’s not clear how many more blunders of this scope the Trump White House can afford before it begins to lose more ground than it can hope to recover through tweeting wars and brashness at the podium. If past is prologue, President Trump will now hunker down, issue denunciations of his critics, tweet his familiar overly blunt one-liners at the world and refuse to acknowledge any mistakes. That isn’t a prescription for repairing the damage he’s already done to his own agenda — or to the office he has stewardship over for the next four years.