So President Donald Trump slipped on the U.S. Constitution in his rush to ban Muslims from entering the country?
If only it were that simple to explain.
The better analysis is this: The Trump White House, staffed by amateurs and easily manipulated by ideologues, allowed a poorly crafted, overreaching executive order to be sprung so quickly that Homeland Security’s enforcement created international chaos and unnecessary human hardship, and the Justice Department’s defense of the order was embarrassingly inadequate.
That was all made clear in the punishing procedural setback the government suffered Thursday in a ruling by a panel of judges in the Ninth Circuit Court of Appeals. The wisest path now for the Trump administration is to abandon any appeals and start over, if it wants to make good on its campaign promise to prevent domestic terrorism, by tightening the rules for those seeking to enter our country.
The president has every right to take a critical look at the standards and process for vetting those seeking visas and refugee status, although we would argue that the existing screening process is quite lengthy and sufficient. But Trump’s claims that the country is in imminent danger from terrorists attempting to enter from seven predominantly Muslim nations won’t pass muster in the courts without some actual proof. On Friday, in a hearing on yet another challenge to the Jan. 27 executive order, a judge in Virginia asked the government’s legal team to try harder. “The courts have been begging you to provide some evidence, and none has been forthcoming,” said U.S. District Judge Leonie M. Brinkema.
The Justice Department has been unable to make a case that there is an emergency that justifies disrupting the lives of those legal residents who have lived here without incident for years, those who have enriched their communities, businesses and universities. Not only are the new restrictions not flying with the courts, the news photos of grandmas in wheelchairs, children with teddy bears, and interpreters who worked so hard to help our troops in Iraq being detained at airports did not depict the values America wants to present to the world.
And while the administration won’t concede that lawful permanent residents holding green cards have due process rights — such as requiring notice of a change in their status and a hearing if they are refused re-entry — not surprisingly, it is dropping enforcement of that part of the executive order. But one reason the administration lost in the Ninth Circuit is the court’s refusal to accept, as adequate proof of the reversal in policy on green card holders, a memo by the White House counsel. This failure to provide a document from an official with power to enforce the executive order is further proof of the mismanagement at the White House and the lack of direction at the Department of Justice.
In light of the confusion, as well as the divisiveness sown by the executive order, the administration should try again, even if won’t acknowledge that it has few choices but to do so. Trump seemed to outline a path forward Friday as he spoke at an event to welcome the prime minister of Japan.
“We’ll be doing something very rapidly having to do with additional security for our country,” Trump said, adding that, “Ultimately, I have no doubt we will win that particular case.” Translation: There will be a bigger, more beautiful executive order, but he will cover up the stumble by bragging that he could have won anyway if he appealed to the U.S. Supreme Court.
Starting fresh would give Trump the opportunity to step away from his foolish attempts to undermine the legitimacy of the federal courts — if for no other reason, and there are plenty, that ragging the umpire rarely works on those who don’t answer to you, and have lifetime tenure and broad powers. The stench Trump created from his attacks on judges forced Neil Gorsuch, his nominee to the Supreme Court and a federal appellate judge, to label them “disheartening” and “demoralizing.”
A new executive order might not even be necessary. It would be quicker to allow the Department of Homeland Security to implement changes to its vetting criteria for refugees and others from nations that breed terrorism. The president has wide authority to protect national security and should be given deference by the courts, but the administration should abandon the notion that its actions are not reviewable by the courts. The judiciary clearly is empowered to ensure that an individual’s constitutional rights are not violated.
And that might be just what the administration fears.
Strikingly, the Ninth Circuit did not rule on the claims by Washington and Minnesota that the executive order amounts to religious discrimination. The two states cited Trump’s numerous campaign promises that he wanted to ban Muslims, made mostly before he took the oath of office, as evidence of his intent to target a specific religion.
In upholding the temporary suspension of the order, the Ninth Circuit said this was not the time and place to rule on whether the executive order was actually prompted by a discriminatory intent. However, the appeals court said that those making that claim might have a pretty good case in the end.
So even in an executive order redo, Trump’s biggest hurdle will still be his own tweets, and the Constitution.