If something is worth doing, they say, it’s worth doing right. The Trump administration should take that advice to heart.
On Thursday, the Ninth Circuit federal appeals court upheld a restraining order against Donald Trump’s executive order temporarily halting refugee processing and travel from seven Muslim-majority countries. The Ninth Circuit is notoriously liberal, and its decisions are overturned 80 percent of the time by the Supreme Court, post-certiorari. This latest decision is particularly egregious. The court’s reasoning is unsound, the authority it has arrogated to itself is unprecedented, and the consequences to national security are potentially serious. The Supreme Court has good reason to overturn the Ninth Circuit’s ruling.
It was obvious from the moment the executive order was signed that the administration had not adequately laid the groundwork for its implementation. The White House failed to communicate with Homeland Security and Customs officials at the nation’s points of entry, leading to widespread chaos (augmented by thousands of eager protesters). For more than 24 hours, the White House failed to clarify whether the order applied to legal permanent residents, stranding already extensively vetted green-card holders at airports. The White House failed to emphasize language in the order that permitted entry to American allies from Iraq, leaving translators and others temporarily in limbo.
Things have not improved since. The executive order was implemented without Trump’s nominee for attorney general in place; the acting attorney general, a holdover from the Obama administration, seized the opportunity to make herself a left-wing martyr by declaring that she would not defend the president’s order in court. The president and his own spokesman sparred about whether the order was a “ban.” Then, when a Seattle judge temporarily stayed the order, the president used Twitter to attack him, deflecting attention from James Robart’s judicial roguery to the president’s apparent undermining of the judiciary. Meanwhile, the Department of Justice attorneys representing the government before Robart and before the Ninth Circuit failed to cite any of the evidence available to support the government’s argument that keeping the executive order in place was imperative to national security. “I’m from the civil division, if that helps get me off the hook any,” one DOJ lawyer told Robart in defense of her ignorance.
Donald Trump came into office under a darker cloud than any president in the modern era. He didn’t get a honeymoon. The day after his inauguration saw more than 2 million people worldwide gather to protest, many of them chanting “Not My President” and billing themselves as a “Resistance” against an “illegitimate” president. In Congress, Senate Democrats are voting en masse to block even his eminently qualified Cabinet nominees, while liberal lawyers hunt for any grounds for lawsuits, like the long-shot Emoluments-clause lawsuit filed by David Brock’s Citizens for Responsibility and Ethics in Washington.
Hindsight is 20/20, but it was not hard to foresee that the Left would be gunning for Donald Trump, that it wouldn’t matter whether the nominees or the policies would be good or bad, lawful or lawless; that the goal would be to delegitimize him, humiliate him, crush him, using any weapon available.
Was this incompetence or recklessness? There is no third option.
But the White House didn’t see this — or did, and didn’t care. The order should have been crafted with care and precision, the relevant officials properly informed and instructed, an airtight legal defense prepared — but none of these things happened. Was this incompetence or recklessness? There is no third option.
Last summer, Donald Trump proposed a package of aggressive immigration policies that, his graceless presentation aside, promoted legitimate interests: enhancing national security against attempts by terrorists to use legal-entry processes to infiltrate the country; stimulating economic health by cutting down on the low-skilled and unskilled workers whose large-scale importation have hindered wage growth for American workers; and promoting a more robust sense of national identity, against the most toxic forms of multiculturalism. But the White House’s extraordinary bumbling on this initial measure has made it easier for the administration’s critics to make their favorite case: that the order is, in truth, nothing more than thinly veiled bigotry. And as the president tries to implement other elements of his immigration agenda, they’ll point back to this executive order as evidence of his “real” intentions.
When that happens, as it inevitably will, the White House will have no one to blame but themselves.
— Ian Tuttle is the Thomas L. Rhodes Fellow at the National Review Institute.