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Trump’s Immigration Order Might Be Constitutional, But Its Hasty Construction Will Hurt Him


This past weekend saw a legal storm unlike any I’ve ever witnessed. An executive order on immigration dropped without preparation—but with immediate effect—on Friday. In a moment of action usually unseen in any sort of bureaucracy, U.S. immigration policy enforcement turned on a dime. It went from lax enforcement of U.S. immigration law per previous executive decrees from former President Obama (in contravention to his oath of office, but that is now historical footnote) to vigorous enforcement.

Detainees started collecting in U.S. airports. Media swooped in. Lawyers sprang into action. Within 24 hours, multiple courts had enjoined the government from enforcing the Executive Order pending various points of review. Within hours of the first two judicial stays, the Department of Homeland Security issued a press release about still enforcing the EO. Now, three days later, legal scholars, policy wonks and media are still trying to figure out exactly who can go where.

The editorial suggestion for this analysis was The Good, The Bad, and The Ugly of the immigration EO mess. But problematically, I do not see any good.

Is Trump’s Executive Order Constitutional?

Yes, I do agree with the assessments of lawyers around the web that the EO is probably constitutional. (Most have linked to David French on this point, but I prefer Dan McLaughlin.) At root, non-citizens don’t have rights against our government. The habeas corpus actions by non-citizens upon arrival stem from the limitations the Constitution places on our government.

As a practical matter, the distinction is hardly noticeable. But as legal reasoning, it is significant and means that the federal government can limit immigration more than most people understand. So the Trump Administration is probably in-bounds on the policy.

But technical compliance is not in itself good, and current arguments about the EO’s constitutionality miss its real-world effects. It is easy for professors, judges, appellate lawyers, and legal policy wonks to get into theory and forget to notice what the jury sees—much less what effect the verdict will have upon their client.

Today’s news is not just full of that kind of blindness, but also media ignorance. This is not new, of course. But no matter how much we brace for media ignorance, it still has an effect. And there is nothing good about effects here.

Does the EO ‘Protect’ Us From Foreign Terrorist Entry?

The reason the Administration has given for these restrictions: protecting the nation from foreign terrorist entry. For the sake of argument, let us assume that the Administration believes the current state of immigration increases our terror risk. It is hardly an unreasonable assumption, but for the purposes of examining effectiveness, I want to strip away all the hysteria and hypocrisy about baser motives.

First, if they wanted to reduce the terrorism risk, they should have tailored the list of effected countries to those with high terror risks. Instead, they tied it to previous laws enacted during the Obama Administration. Those lists were highly political and sheltered high terrorism counties, such as Saudi Arabia, from the restrictions because of various political and economic ties with the huge oil producer.

Whether using the previous list was lazy, or some weak attempt at countering anticipated resistance—“Obama did it first!”— I can only guess. But imposing immigration restrictions on countries that don’t send terrorists abroad and leaving off countries that have is nonsensical, especially for the man who promised to end D.C. nonsense. If the goal is reducing the chances terrorists make it into the U.S., then the list is missing a few countries.

Why Would The EO Exclude Interpreters And Informants?

Second, if the Administration wanted to reduce terrorism, then they should have excluded people who had served as interpreters or informants against our enemies. Those persons had put their lives at risk to help out military and defeat or enemies, not exactly a hallmark of potential terrorists.

The skewed country list is an example “under-inclusiveness,” and the informants are an example of “over-inclusiveness.”  The latter category also includes green card holders (which has now been walked back), children, and university scholarship students, who are not only unlikely terrorists, but also very sympathetic detainees, which prompted the media frenzy in waiting.

This over- and under- inclusiveness not only made it easy for the media to spin up the public about a “Muslim ban” with sympathetic tales—it also meant lawyers had their pick of potential plaintiffs. The over- and under- inclusiveness problem also enabled judges to issue sweeping injunctions against the government. It was a spectacular unforced error. (For any readers curious about classification issues and the scope of the injunctions, Prof. Josh Blackman has the first comprehensive explainer.)

The EO’s Implementation Has Met With Error And Confusion

Then came another unforced error. In response to those injunctions, the Department of Homeland Security issued a press release, and if it said what it sounds like it says, we’d be in radical territory.  It opened:

The Department of Homeland Security will continue to enforce all of President Trump’s Executive Orders in a manner that ensures the safety and security of the American people. President Trump’s Executive Orders remain in place—prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety. President Trump’s Executive Order affects a minor portion of international travelers, and is a first step towards reestablishing control over America’s borders and national security.

It reads like defiance, that the executive branch will continue to enforce the EO regardless of what the judicial branch says. That’s how sites left and right took it. The Washington Post’s reaction story carried the headline, “Trump gives no sign of lifting travel ban: Homeland Security: ‘Prohibited travel will remain prohibited.’” Twitchy ran with “Sorry, not sorry, Snowflakes! Travel ‘ban’ remains in place despite court ruling” and a nanny-nanny-boo-boo lede: “The ban that’s not really a ban is still in place. Suck it up, lefties.”


Let us be kind and simply note that the press release aggravated an already angry situation.

This Is How We Reached Peak Frenzy

But, oh the irony, the press release only sounded like defiance. It had tried to say that the stay doesn’t stop enforcement of the entire EO, and that DHS would follow the court orders but continue to enforce the rest of the EO. DHS even tried to calm things down by issuing a clarifying press release a few hours later, one that opened, “Upon issuance of the court orders yesterday, U.S. Customs and Border Protection (CBP) immediately began taking steps to comply with the orders.” but the media and public were already at peek frenzy with no inclination to listen.

Furthermore, one of the defensive points bouncing around to calm reaction down was that the injunctions only effect a small number of people. The reasoning goes that the injunctions only apply to people in transit or already here, because the U.S. government can still revoke travel visas per the EO. If one does not have a travel visa, one can’t get here to face the threat of detainment or deportation and thus cannot fall under either the EO or one of the stays. This is true.

But revoking visas is not a mitigating event, it is an escalating one.

Just Because Government Can Doesn’t Mean It Should

Again, I’m not arguing that the government cannot do this, but that doing it will not calm the situation down. From a public relations standpoint and an international commerce standpoint, whether someone is refused a visa abroad or sent back from whence they came is a detail. As far as the commercial public is concerned, it’s the stopping that offends.

Saturday night, my husband got an exasperated call from a colleague with dual citizenship from Canada and Iran. He cancelled his business trip here because he didn’t want to risk the hassle. When CATO’s analysis of terrorism risk from immigration vs. economic consequences found the far greater risk in economic consequences, it was the mood that cancels these thousands of business trips per day that CATO had in mind.

We can limit immigration, yes. But that the government can do something is not an argument for doing it.

What Trump’s EO Could Have Done Instead

The EO could have been much simpler to implement and much harder to resist if it had simply stated that due to terrorism concerns, U.S. immigration officials would give extra scrutiny to anyone traveling from certain named countries.

Then, the Department of Homeland Security could have spent the next few weeks formulating the details of that heightened scrutiny and training immigration officers on executing those details. The buildup at airports and the flight refusals around the world would not have created an instant flashpoint. For those detained, lawyers would have still filed actions on their behalf, but the similarly affected persons would not have been so many or so easy to group. Thus, the stays would likely have been limited to the named individual, or smaller classes of similarly situated individuals.

The Administration, however, was so determined to get broad protection rules on the books to satiate President Trump’s base (and send a big middle finger to his detractors), they have severely limited their ability to enforce such rules, perhaps for a while. Stays are aptly named, and the emotional nature of “the airport cases” makes it likely that at least some of the lower courts will find against the Administration, regardless of what the legal commentators publishing at National Review think about the constitutionality of the EO.

What Trump Has Managed In His First 10 Days

For any who believe that national security requires tighter borders, the government just risked a lingering injunction, which would prevent tighter border enforcement for years while the appeals work out. (Ask Texas whether that happens.)

Back in ’09 it took a couple of months for the opposition’s mass protests to start and the fans’ disappointment to settle in. By the summer of Obama’s first term, many had realized that while he was an excellent candidate, he was at best a mediocre politician. President Trump has managed that feat in 10 days.

Credit to Prof. Blackman, linked above, for naming the collection of lawsuits “the airport cases.”