On Saturday, in explaining the lawfulness of President Trump’s executive order dealing with the entry of aliens into the United States, I opined that the question of legal authority was separate from that of policy wisdom. Whether something is good policy depends not only on whether its objectives are worthy but also on whether its implementation is sound. Poor implementation can undermine good policy objectives and create unforeseen, unnecessary legal problems.
There are three major implementation problems with the EO.
1. Lack of Notice
The overarching problem is that the Trump administration opted for immediate implementation rather than giving travelers a brief notice period (say, a week or even a few days), so that people who had done nothing wrong were not sandbagged. Through no fault of their own, they were detained or denied entry and put on a plane back to the country from which they had come. This seems inexplicably unfair (and, as I’ll address in a bit, strategically foolish).
Even if you accept, as I do, that the inadequate vetting of aliens who come to our country is a serious security problem, surely the imposition of temporary restrictions (in anticipation of more refined restrictions to come) could have waited a few days. President Trump has been issuing orders since a few hours after he was sworn in; if the threat situation is such that he could afford to wait a week to issue this EO, then there’s no reason he couldn’t have waited another week to give government agencies time to prepare, and foreign travelers a chance to alter their plans.
2. Application to Lawful Permanent Resident Aliens
The second and most serious question, as David French, Dan McLaughlin, and Charlie Cooke have all discussed, is the application of the EO to green-card holders — i.e., lawful permanent resident aliens (LPRs). I agree that the EO should either have excluded them altogether or proposed a different procedure for them in the interim before the administration announced a more refined vetting plan. And, indeed, White House chief of staff Reince Priebus intimated in a Meet the Press appearance Sunday morning that the EO’s application to LPRs is being eased, if not rescinded.
Unlike some of my colleagues, I do not think there is any doubt that the order literally applies to LPRs. It states in pertinent part (italics are mine):
[P]ursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order[.]
LPRs are aliens who have immigrated to the U.S. — i.e., permanent settlers. When they travel internationally (as they are liberally permitted to do while maintaining their LPR status) and then return to the U.S., they seek an “immigrant entry” (as opposed to a “nonimmigrant entry,” which generally involves alien visitors whose presence is lawful but who do not seek to settle in the United States). The terms of the EO clearly make it applicable to entry by any immigrant alien. Consequently, it applies to LPRs who have traveled from the seven countries implicated by the suspension order.
The application of these EO terms to LPRs is misguided. As my colleagues have noted, LPRs are already subjected to extensive vetting — no doubt more extensive than whatever heightened vetting the administration has in mind for most visa seekers. Some of them are on the cusp of naturalization as citizens. It would have been better, at least in the start-up phase, to treat LPRs as American citizens, because they are already considered “U.S. persons” for most purposes.
To be clear, this would not have meant an absence of vetting — as Priebus conceded Sunday. Upon entry, LPRs are already subject to examination by a Customs and Border Protection officer. Moreover, if there are articulable reasons to suspect that a specific LPR is a threat to the United States, that person may be questioned extensively, subjected to investigation under the Foreign Intelligence Surveillance Act, and even detained if there are grounds to suspect a violation of the conditions under which LPR status was granted. But I believe it was shortsighted to suspend the entry of LPRs, as a class and without notice, when the government does not (and may not) do that to citizens (who are not subjected to extensive vetting, as LPRs are).
Don’t misunderstand: As I pointed out yesterday, the president has the legal authority to apply the EO to LPRs under the sweeping power granted by Section 1182(f). The question is whether doing so is just and strategically sound (again, I’ll get to strategy in a moment).
3. Detrimental Reliance
Finally, there is a legal fairness issue closely related to the lack-of-notice problem. The United States gave visas to the aliens who have been detained (and, in a few cases, turned away and returned overseas). These aliens went through the application process, which was legal, even if the Trump administration — rightly — believes it was inadequate for security purposes. Then our government gave them lawful-entry authorization, which induced them to travel here. Do these facts open the door to any legal redress? In theory, no: The law is pretty clear that the nation has the sovereign power to police its borders, and that this power is the province of the political branches, with the courts having little if any jurisdiction.
But . . . are we sure about that?
Bad Facts Make Bad Law
The Trump administration’s most consequential folly may be the litigating posture it has put itself in. It was inevitable that the EO in question was going to prompt court challenges. From the perspective of policymakers in Washington, that may not have been much of a concern. As a federal prosecutor in New York for almost 20 years, I saw this dynamic play out many times: Policymakers often assume that if the law is strongly on the side of the policy, judges will compliantly do their jobs and follow it. You know, like: “Yeah, let’s put the alien terrorists at Guantanamo Bay! It’s outside the U.S., so it’s outside the courts’ jurisdiction — they’ll never interfere. And if they try, we’ll get them reversed on appeal.” How’s that one workin’ out?
Down here on planet Earth, those of us who have had to defend these policies in court find that judges are not such pushovers. And for a good, predictable reason: A judge’s job is not to promote the national security of the United States, at least not primarily; judges are there to provide justice to the parties who appear before the court. They take this responsibility seriously, and they are working in a tradition that treats the government like any other litigant, entitled to no special treatment (other than any preference the law prescribes in statutes and precedents). In my experience, the greater the difference in relative power between the litigants — e.g., the mighty government versus a poor alien who doesn’t grasp the legal system and might not be entitled to counsel — the more federal judges bend over backward to ensure that the alien is getting due process.
The first thing this should suggest is that optics matter: If the law is solidly on the government’s side, it is to the government’s advantage to litigate the law as an abstract proposition, not as something that has been implemented and that has harmed apparently innocent people.
Let’s say the Trump administration had announced its new policy and explained that it would be implemented beginning one week from the date of the announcement. The ACLU & Co. would still have stormed immediately into court . . . but they wouldn’t have done so while representing highly sympathetic clients who were being detained at the airport amid swarms of protesters, news media, Democratic politicians making welcome-to-Nazi-Germany speeches, and so on.
A week’s delay would have convinced most aliens not to travel here and risk detention or exclusion.
The ACLU lawyers would have been trying to conjure up doom-and-gloom rhetorically but without flesh-and-blood horror stories. The government lawyers would have been citing their strong precedents. The judges would have been hesitant, even if they thought the policy was wrong, to take action under circumstances in which the government was on solid legal footing, the courts’ jurisdiction was questionable, and no one had suffered real harm. Meantime, the chance that the policy would result in sympathetic victims would have diminished to near zero: A week’s delay would have convinced most aliens not to travel here and risk detention or exclusion; and any aliens who came would have been doing so in knowing defiance of the EO, not in innocent reliance on the prior issuance of a visa.
Instead, the Trump administration must now litigate on the defensive. Some judge offended by the application of the order to LPRs may decide that LPRs are so woven into the fabric of our society they must be treated as citizens — and if that were to become settled law, it might later hurt the government in cases where there would have been investigative advantage in an LPR’s not being a citizen. Another judge offended by the callousness of giving people a visa and then pulling the rug out from under them once they get here, may decide, “I want to explore whether a visa is the legal equivalent of a contract that the government has breached.” Any of the judges inclined to entertain novel legal claims could order hearings — demanding testimony or answers from government attorneys about how the EO was formulated, which officials were consulted, what preparations were done, whether there are communications between officials about denying aliens entry after they’d been granted visas, and why, if we’re worried about the terrorist threat, Yemen is on the list but Saudi Arabia isn’t, and so on.
Maybe the government would have good answers to all these questions. But if officials could not answer them, answered them incorrectly (which can happen in a chaotic situation in which everyone is not on the same page), or appeared to be stonewalling, that could generate bad judicial rulings and erode public confidence in the new policy (and buoy the opposition to step up its efforts).
Good policy requires good implementation. Bad implementation begets victims with legitimate grievances and heightened judicial scrutiny — the kind of bad facts that tend to make bad law. And bad law makes it much harder to develop good policy. It can become a cycle of self-defeat.