Outsized though her role might seem now, Sally Yates is not the story of Trump’s immigration executive order, and she’s not the star, either. There are, in fact, three stars of this story — three key performers that made the whole thing a hit — and they are, in order of importance, the Trump administration, Congress, and the American mainstream media.
Trump is a star because he and his team completely botched the rollout. I daresay that this order would have been controversial however he’d proceeded; having promised a “Muslim ban,” anything that even hinted at limiting the number of immigrants from the Middle East was bound to be met with staunch opposition. But it’s hard to imagine how Trump could have made it worse if he’d tried. Had he fully briefed his departments and been sedulously clear with the press — as opposed to dropping the order on a Friday and keeping the executive branch in the dark — we wouldn’t have seen such confusion. Had he set an effective date — or at least exempted those in transit — we would have been spared the scenes of woe and panic at a host of U.S. airports. And had green card holders and military interpreters been rendered exempt, the whole thing would have seemed less callous. Trump did none of these things, and thus guaranteed that the backlash would be immediate and that it would be potent.
The second star is Congress. It is possible that Trump’s order is ultra vires. And it’s possible that it’s not. (Given that the courts have ruled that Congress has plenary power over immigration, the arguments against its constitutionality, as opposed to its statutory legality, are extremely weak.) Whichever is correct, though, we shouldn’t be constantly having these debates. Why not? Because these are questions that should be left to Congress. For decades now, Congress has delegated power to the executive as a matter of routine. And in response, the executive has pushed its luck whenever it saw an opportunity. If the president can plausibly argue that he’s acting within his powers, he does so. Really, we shouldn’t be surprised that Trump is following suit. The way to fix this is for Congress to take back some of its power in this realm so that these decisions are by default and by right the preserve of the legislature. Until that happens, we’re going to see more messes such as this one.
The final star is the media. And my goodness what a prima donna it is! It seems that it has never been more difficult to have a reasonable conversation than it is at the moment. Everything is “UNPRECEDENTED!” or “UNCONSTITUTIONAL” — even, perhaps especially, when it’s not. The constant Nazi comparisons are as ceaseless as they are stupid. And the instinct to push the outrage to 11 is just too much for many to resist. In the first few hours of the order’s life I counted no fewer than 15 elementary legal mistakes peddled by major outlets. And, as usual, those mistakes gained far more traction than did the eventual corrections. The upshot of this: By the time we all knew what the order actually said, most people were too confused and misinformed to debate it in any meaningful way. I keep being told that to criticize the media is to fail to “focus on Trump.” Respectfully, I disagree. The way the media is behaving of late is making it difficult to focus on Trump with any result.
I don’t like this order. I think it’s too blunt. I think it’s ill-considered. And I think it’s all bark and no bite, which is precisely what you want to avoid in a counter-terrorism effort. But it’s almost impossible to have a conversation about those flaws when everyone involved in politics has opted for either supine impotence or for hyperventilation. At present, you’re either “with Hitler” or you’re “against Hitler.” There is no middle ground allowed. What a failure of our civic culture — at every level.