What do you do when a sloppy court ruling blocks a poorly written and incompetently defended executive order?
That’s the question before the President Trump this weekend. The right answer is to rewrite the executive order substantially, to eliminate the genuine legal issues and moral concerns that buttressed ersatz arguments against it. This must be done while still addressing the central security concerns that the order was intended to address.
Trump has not lost his authority to keep known, suspected or potential terrorists out of this country, as is clearly prescribed by the Constitution and in current immigration law. His order has been shot down not because national security has suddenly been yanked out of the proper grip of the president, but because it raised wider constitutional concerns that a proper consultative process could and should have been eliminated before the order was published.
“We are going to do whatever is necessary to keep our country safe,” Trump said in a press conference on Friday. If that’s his priority, the White House should craft a new executive order immediately, with three main differences in process and scope.
In its ruling, the three-judge panel on the 9th Circuit Court of Appeals all but invited this course of action. It declined to reconstrue the meaning of Trump’s order according to the terms of a follow-up memo by White House Counsel Don McGahn. “[I]t is not our role,” the judges wrote, “to try, in effect, to rewrite this executive order. The political branches are far better equipped to make appropriate distinctions.” This could be taken as a strong hint that if Trump wants the order interpreted in a particular way, he should reissue it with written language that says what it’s supposed to say.
The president should get more input from all the agencies that will be involved in enforcing it. Half the problem with the original order was the chaos it caused when no one seemed sure to whom it applied.
There is a proper interagency process that goes beyond having the Justice Department’s Office of Legal Counsel approve it for form and legality. The Departments of Defense, State and Homeland Security need to be involved at an early stage. Without them the White House risks sloppy enforcement that invites confusion and abuse.
The new order should also explicitly exempt those holding visas and green cards. There is always a problem with retroactive lawmaking, for it makes reasonable people feel cheated. If they have green cards and visas, they already did what prevailing law required them to do. Changes in the law should look forward not backward.
The state of Washington might not have even been granted standing to bring this case, except for the executive order’s possible violation of due process to permanent residents and visa holders. This was the argument that clearly prevailed. The court seemed far less willing to credit the state’s argument that the order was discriminatory by religion, although it reserved the right to do so later.
A new order that covers only foreigners seeking to come to America from abroad will be much easier to defend in court and harder to challenge on the streets, while still serving the original security purpose. Arguments for giving Washington or any other state standing to sue on behalf of people who have never been to the U.S. will be extraordinarily flimsy.
Third, most of what the original order sought to accomplish is in the provision barring, for 90 days, all new entrants from seven countries of extra concern. The temporary freeze of the refugee program, for all the press coverage it got, is almost insignificant in comparison. The White House should consider scrapping it if, after consulting the State, Defense, and Homeland Security Departments, it is satisfied that vetting is now sufficiently tight — terrorists have entered the U.S. as refugees in the past — that citizens can be genuinely reassured that refugee status cannot be used as cover by jihadis.
Trump clearly feels that his executive order is necessary to keep America safe. As president he has, and should have, vast authority to control admissions into this country. That is part of his constitutional duty to protect the country from enemies foreign and domestic. How best to do that? Already, on Twitter, the president appears to have resolved to continue the legal fight. A quicker route to victory, and one that would beef up national security sooner, would be to produce a new order. That will allow Trump’s administration, when it is inevitably taken to court again by its most determined opponents, to defend its best effort not its worst.
