‘Clear Adjustments Needed’ for White House

This weekend’s fast-evolving controversy over the order, which bars entry into the United States for 90 days for people from seven Muslim nations, is President Donald Trump’s first substantive and serious public policy snafu. The chaos that erupted in American airports—both in the confusion about what law enforcement was expected to do with visa-holders arriving in the U.S. from those countries, and in the protests that emerged there—set the tone for how everyone processed the whole executive order. What did the order say? Who was affected by it? Was it constitutional? Was it effective? It was as if we needed a total and complete shutdown on news developments about the travel ban until we could figure out what the hell was going on.

This confusion wasn’t just happening on the level of the refugees and visa-holders, the law enforcement officers at airports, and for normal people watching the news at home. People at the highest levels of the federal government seemed just as confused. The New York Times has the perfect anecdote to demonstrate this:

The consequences of the decision not to fully brief the relevant departments and agencies were felt almost immediately. Department of Homeland Security, CNN reported, had interpreted an ambiguity in the order to mean that the travel ban did not apply to legal permanent residents, those foreign citizens who hold green cards and live in the United States. DHS issued guidance on green-card holders to officials and the airlines on Friday night. “The White House overruled that guidance overnight, according to officials familiar with the rollout,” CNN’s report reads. “That order came from the President’s inner circle, led by Stephen Miller and Steve Bannon. Their decision held that, on a case by case basis, DHS could allow green card holders to enter the US.”

Then, on Sunday, Secretary Kelly issued a statement essentially reversing the decision by Miller, Bannon, and the White House. “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,” Kelly said. “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.”

It wasn’t just DHS who seemed to have been caught flat-footed by the order. CNN also reported that the Justice Department’s Office of Legal Counsel was not consulted for guidance before the executive order was issued. The result, writes Benjamin Wittes, is that the order is something of a mess, with references to the wrong statutes and legal holes the ACLU is more than happy to drive lawsuits through.

When I asked the White House if CNN’s report about the OLC not being consulted was true, an official said it was not and that the OLC “did sign off” on the order. On a Sunday night conference call with reporters, a senior administration official also said the OLC “approved” the executive order. It’s not clear if the “approval” process is the same as the guidance process—my call to the OLC and the Justice Department wasn’t returned.

And as Jenna Lifhits has noted, top Republicans on Capitol Hill spent the weekend distancing themselves from the order and calling for changes and corrections to its flaws. “In light of the confusion and uncertainty created in the wake of the President’s Executive Order, it is clear adjustments are needed,” said Michael McCaul, the chairman of the House Homeland Security committee. “In the future, such policy changes should be better coordinated with the agencies implementing them and with Congress to ensure we get it right.”

“Should be better coordinated” may be the understatement of the year so far.