The official position of the president is that everything went great this weekend in the Immigration Executive Order.
“It’s working out very nicely,” Trump told reporters early Saturday evening. In fact, Trump pointed to the airports themselves as proof: “You see it at the airports, you see it all over, its working out very nicely, and we’re going to have a very strict ban, and we’re going to have extreme vetting, which we should have had in this country for many years.”
For most administrations, “very nicely” doesn’t include emergency stays granted by judges around the country. But while protesters chilled screaming into the void, and the ACLU counted its money and did its victory dance. adherence to the orders was haphazard.
According to widespread but largely unverified reports, after being detained at great length, handcuffed, having their social media accounts inspected, being questioned about how feel about Trump, many legal permanent residents were admitted. Not good, but it could have been worse.
Other stories had less happy endings. Green card holders were allegedly coerced into executing form I-107, relinquishing their permanent residency as their way out of this mess through various manipulation schemes, to be deported as their way out. This is a huge deal for legal permanent residents.
Finally, Homeland Security Secretary John Kelly announced on Sunday, January 29th, that there would be a change in policy:
WASHINGTON – In applying the provisions of the president’s executive order, I hereby deem the entry of lawful permanent residents to be in the national interest.
Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.
In other words, legal permanent residents are presumptively to be admitted entry. Absent “significant” information of a “serious” threat, their green card was “dispositive.” What of those who were turned away in the preceding couple of days? What of those forced to sign an I-107 form? Who knows? But had the government thought this through, understood how to handle its role in seeking to accomplish the EO, putting side whether the EO is otherwise horrible policy, this would have been in place beforehand.
Government. How does it work?
There were defenders of the scheme, screaming nonsense like there were maybe three people inconvenienced (there were hundreds affected, some severely) or that if people didn’t like “extreme vetting,” they shouldn’t bomb buildings or murder people (they didn’t; there was no suggestion to the contrary).
But even if this begins to wash out to some degree of normalcy, there was an additional problem brewing that shouldn’t get buried in the screaming from either side. The order issued by Eastern District of Virginia Judge Leonie Brinkema at the request of Legal Aid Justice Center and Mayer Brown includes the term “respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport.” The now flush-with-cash ACLU neglected to include that in its petitions.
Reports from lawyers on the ground at Dulles was that Customs and Border Patrol agents refused to adhere to this term of the order. They knew it. The agents reportedly said “it’s not going to happen.” President Andrew Jackson famously responded to the Supreme Court’s 1832 decision in Worcester v. Georgia, “John Marshall has made his decision, now let him enforce it.”
It has since been reported that the CBP has come up with what they apparently believe is a way around the order.
Note that Judge Brinkema’s order says, “detained at Dulles,” so by removing them from Dulles, where the order was already ignored, the CBP may believe they can avoid compliance, or at least have a plausible argument that they thought the order didn’t apply. It’s a nonsensical argument, but they may hope it’s close enough to get them out from under contempt.
One of the lawyers working on the ill-conceived Emoluments case against Trump, Deepak Gupta, offered this reaction:
People may be throwing “constitutional crisis” around a bit too loosely. No clear evidence yet of deliberate defiance of a court order.
There are two very different assertions in his twit. The first, “constitutional crisis,” seems correct, but only because no one had apparently gone back to any judge who issued an order to seek enforcement. There was no motion for contempt, no request for sanctions, no request that the United States Marshals point their guns at the Customs and Border Patrol agents, who would point their guns back at them. That would be a constitutional crisis.
On the other hand, Gupta’s assertion that there was “no clear evidence of deliberate defiance” appears to be completely inaccurate. The evidence was quite clear. There was defiance. The defiance was deliberate. Channeling President Jackson, the CBP agents responded to the judges, “make me.”
What’s become of all this since isn’t clear. Information from the ground remains spotty, with lawyers busy twitting with their fans, chatting with reporters to make sure their names are spelled correctly in the posts to come out today, making videos and basking in the glow of appreciation rather than getting the order enforced. The former is fun and good for business. The latter is work, and could well result in unpleasant words.
Regardless of whether you proudly wear your red MAGA cap despite not playing baseball, or hold up signs calling everyone who disagrees with your feelings a Nazi, racist, sexist, xenophobe, this isn’t the way to either achieve a goal or run a government. Supporters of the president can excuse this chaos* because they understood he wasn’t a “career politician,” but an outside disrupter, doing the things that insiders refused to do, but you were certain needed to be done.
The actions over this weekend hurt real people, some severely and some, like the Aziz brothers, in ways that defy legal comprehension. This “not ready for prime time” approach to running the United States doesn’t work, even if it didn’t make your life unhappy. Managing an enterprise as large, complex and powerful as the United States of America requires a significant degree of appreciation of law, governance and policy, or “how things work” if you will. You can’t slough it off with some cute phrase like, “you have to break a few eggs to make an omelet.”
The question of whether you favor Trump’s goals or not isn’t the point. Regardless of whether this is “cruel” or proper, both the content of the Executive Order and its implementation reflect a finger pushing the buttons that isn’t capable of achieving its goal in manner consistent with competent governance.** And this weekend’s chaos is only the opening salvo. There are other time bombs*** in this EO that will explode in our faces.
Conservative or progressive, competent governance is necessary unless a constitutional crisis is what you want. This isn’t a game for amateurs. This isn’t easy. And the handling of this EO was a fiasco. Trump says it went very nicely. This doesn’t bode well no matter which side you’re on.
*There are some who contend this is a well-conceived, conspiracy-type scheme to intentionally create chaos, whether to divert attention away from other issues or to further divide sides to enable more extreme measures to quell the “lawlessness.”
**There was a question raised about whether the Department of Justice, Office of Legal Counsel, approved of the EO for form and legality. New York Times reporter Charlie Savage twitted that DoJ did. CNN says it didn’t. Former DoJ OLC lawyer, now lawprof, Marty Lederman, finds it hard to believe that OLC (still staffed with attorneys from the prior administration) could possibly have approved this EO.
**See Mario Machado’s Fault Lines post about Section 5 of the EO, another obvious disaster brewing.