In between keeping tabs on the Trump administration’s mess-up over its executive order on immigration, I spent some time over the weekend reading. I don’t have the best track record with New Year’s resolutions, but so far I’m ahead of schedule on my plan to read the complete works of Shakespeare. One of things I’ve learned so far is that not everything the Bard of Avon wrote was great. For instance, I found the Henry VI trilogy an interminable soap opera, but even Shakespeare’s lesser plays are notable for one reason or another. For instance, Henry VI part II contains the famous line, “‘The first thing we do, let’s kill all the lawyers.”
The line is particularly interesting, because in proper context it doesn’t mean what it’s come to mean. Shakespeare was in no way being arch or making a cynical joke. The line, spoken by one “Dick the Butcher,” was meant to explain his villainous intent. Rule of law is something that most Americans take for granted, so it’s easy to gripe about the excesses of the legal profession today. But in Shakespeare’s time, one of highwaymen and violent jockeying for the throne, respect for law and order was considered an essential mark of individual character, hence Shakespeare’s reverence for lawyers.
So what does this have to do with President Trump? Well, it seems that one of the biggest reasons Trump’s Friday night immigration executive order turned out to be such a fiasco is that the White House, metaphorically speaking, killed all the lawyers that would have normally reviewed what he’d done:
The White House would later dispute CNN’s reporting on this point saying the OLC did review the order, but even as of Sunday afternoon it was unclear whether legal review was still happening ex post facto. Further, the White House didn’t put out the order with any guidance or training, such that immigration officials would know how to properly enforce it. It’s clear that various legalities and finer points of due process that one would expect to accompany an executive order of this magnitude weren’t exactly ironed out.
Reducing the amount of refugees America takes in to Bush administration levels and issuing a halt to refugees from certain terrorist hot spots for a few months until the vetting process can be improved hardly seems like a difficult thing to sell to the American people. I’m with Charles Cooke: “If Trump had set an effective date, briefed the DHS, exempted those in transit, and excluded green card holders, he’d have been fine.”
Further, high profile members of Congress, such as Senator Tom Cotton, said they would gladly have defended and supported such an executive order, had the confusion over these issues been addressed. Another Republican senator, Ohio’s Rob Portman drolly noted Trump’s plan for “extreme vetting” of potential terrorists needed better vetting.
As it is, the botched rollout of Trump’s executive order did result in, to my mind, one genuinely serious problem: telling green card holders who were already in transit when the executive order was issued they couldn’t come into the country. That’s madness, and interestingly enough it was lawyers who rode to the rescue. Legal aid, mostly from liberal activist groups, descended on airports.
Eventually a federal judge in New York stayed part of the order on the grounds that there was a “strong likelihood” it “violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution.” While the judge was an an Obama appointee, her ruling seemed appropriate and limited. She noted that this had all happened so suddenly that federal lawyers weren’t even prepared to defend it. “I think the government hasn’t had a full chance to think about this,” said Judge Ann Donnelly of the federal district court in Brooklyn. By Sunday, the administration was allowing green card holders back into the country.
Regardless of whether you like what Trump’s executive order does overall, I think it’s fair to say on a few narrow points here—particularly the green card issue—liberal lawyers did good work. (Though it pains me to say this, considering the ACLU did an unseemly victory dance after getting the partial stay, and in recent years they’ve sold out their own long held practice of defending certain constitutional principles for the sake of progressive politics and meeting fundraising goals.) It’s safe to say that our famously litigious president should be a little more reverent about the need for due process and lawyers going forward.
But there’s another reason why it’s worth highlighting that activist lawyers played such a pivotal role in the pushback to Trump’s executive order over the weekend, because it also highlights how, when it comes to combatting Trump, the Democratic party as a whole has become as useful as a football bat. While the ACLU led the charge over the weekend, with precious few exceptions—Rep. Jerry Nadler was integral to raising awareness of what was happening—Democratic politicians looked remarkably feckless.
They rushed to issue condemnatory statements, but thanks to eight years of waging an absurdly pitched defense of Obama’s weak handling of both immigration and the refugee crises, Democrats had no standing to complain. As a result, when they did speak out their moral preening was often amazingly offensive.
Connecticut senator Chris Murphy tweeted out an infamous picture of a dead Syrian refugee child [WARNING: It is a heartrending image], with the message “To my colleagues: don’t ever again lecture me on American moral leadership if you chose to be silent today.” Thanks Senator Murphy, but that child died long before Trump was president, and the bigger problem is that you and your fellow Democrats were silent, oh, about 400,000 Syrian deaths ago when President Obama decided he was suddenly ambivalent about “Red Lines.”
Of course, we couldn’t do anything to directly deal with the situation that created the refugee crisis in Syria, because that would have meant mucking up Obama’s nuclear deal with Iran. This in turn meant outsourcing our foreign policy in Syria to Russia, a country that Democrats—now they tell us!—have just recently decided is a grave threat to our national interests. Oh and if you’re Obama’s U.N. Ambassador Susan Rice, maybe you’re not the best person to seize the moral high ground and condemn Trump here, because in addition to playing a key role in not doing anything about Syria, she’s also been instrumental in watching two other genocides play out.
Now here’s the real icing on the cake for congressional Democrats: Because they stood by and let Obama assert such unprecedented authority over immigration policy, prominent legal experts are saying that the ACLU’s stay may not hold up and the legal grounds to fight Trump on immigration are shaky. Who could have ever imagined that setting a precedent for executive overreach would come back to haunt the Democratic party? I mean, other than the thousands of mostly conservative commentators that warned of this possibility throughout Obama’s presidency.
Now schadenfreude is a capricious sprite, and I take no pleasure in pointing out that the Democratic party are politically powerless these days. Despite your political persuasion, concentrated power needs to be checked. As if the erosion of constitutionalism weren’t terrifying on its own, the lack of strong political opposition to President Trump right now is that much more concerning, On the bright side, it’s just the first week of Trump’s presidency and it seems likely Democrats will find their voice if Trump continues to make miscalculated moves such as this immigration executive order.
If the Trump administration doesn’t want to empower the opposition, I would also remind them that this is not just about the failure to adhere to some basic due process or take some sound legal counsel. The president’s job is to lead, and not just by issuing decrees. If Trump wants to take some drastic action on immigration, and there’s every reason to believe the voters that put him in the White House want him to, it would be helpful if he paved the way by stepping up to the bully pulpit and making some sort of public argument about what he’s specifically going to do. We spent an entire weekend with angry people storming airports, and no one was even sure precisely as to what the order they were objecting to actually meant, including, it seems, the White House.
As for the debate we should be having, lots of people opposed to Trump’s executive order declared the crackdown on immigration “unAmerican.” They’re not wrong, in a grand historical sense. We are a nation that’s often been shaped by large, ongoing immigration inflows. It’s mostly been to our great benefit.
The question before us now is, are we moving into a new era, where this is no longer tenable? We have an economy that never fully recovered from the last big recession nearly a decade ago. Forces such as automation loom on the horizon and threaten to kill jobs en masse. Oh and purveyors of asymmetric warfare from every corner of the globe are desperate to slip across our borders and shoot up office Christmas parties and gay night clubs. If you’ve ever been in a townhall meeting in, say, a small town where a politician has to allay the fears of people who suddenly have to take care of a handful of unaccompanied minors from central America that the federal government is forcibly “resettling” in their town, you know exactly how much anxiety our current fling-the-doors-wide-open immigration policy produces. (As you probably guessed, I didn’t pull this example out of a hat. For a short while there, Senator Sasse was getting his ears pinned back in Lexington, Nebraska and it was a thing to behold.)
Similarly, there was so much angst over Trump’s executive order because there’s an uneasy and unstated sense we’re at a crossroads on immigration. We’re being asked to choose what’s more un-American—taking in less of the huddled masses yearning to breathe free, or telling free people in a democratic country they have no right to institute what they collectively think are controls on who joins their communities. Personally, I’m agnostic about this debate and there are great arguments for and against these competing visions of immigration. However, it’s obvious which argument Trump favors, and he need not shy away from making it. His own stunning presidential victory, and the European political experience of the last few decades, even suggests it’s a political winner. And if Democrats want to gripe about it, Trump can ask Chuck Schumer to explain why he’s now objecting to something that sounds an awful lot like Bill Clinton’s immigration policy.
In addition to crossing the T’s on executive orders, moments like these demand a president to rise to the occasion and exercise some rhetorical leadership to issue, and no, I’m afraid that tweets are wholly inadequate for this task. In his mercifully short inaugural address, Trump promised to be a man of action, not talk. That’s admirable. However, Trump’s actions are ultimately dictated by the specific words that comprise laws and how they are interpreted. And it is the force of the arguments undergirding those laws, accepted by the people, that preserve the rule of law. Both as it was written and as it was publicly explained, Trump’s executive order didn’t rise to either standard.
On the campaign trail about a year ago, Trump infamously touted his ability to be persuasive by saying, “I know words, I have the best words.” Well, we could really use some thoughtful words from our president right now, as well as some principle and humility from a hypocritical opposition, to help restore faith in our ability to collectively govern. America’s own founding documents, some of the best words ever written, are always a good place to start. Short of that, Shakespeare is a good demonstration of the power of well-chosen words. And it turns out, he even understood just how important it is not to keep undermining the rule of law.
