As the roll-out of President Trump’s executive order on immigration shows, when it comes to governing the nation there can be a fine line between disruption of the status quo, and chaos.
The Trump administration is eager to accomplish the former. Candidate Trump promised to upend Washington’s old ways of doing things, after all. Agency legal reviews? Consultation with Congress? Those can be traps to slow down or dilute bold new policies, according to Trump officials.
But sometimes the old ways are in place for a reason. They can ensure actions are legally airtight and officials are poised to implement a new US government process. They can rally administration supporters. In issuing a ban on travel from some Muslim countries, the White House missed out on these benefits, opting for speed and secrecy instead.
“We’ve seen this before. Presidents or their staff decide to work around executive branch departments and agencies, and the results are generally awful,” writes political scientist Jonathan Bernstein Monday in his Bloomberg View column.
In his first 10 days in office, Mr. Trump has moved quickly to try and fulfill some of his core campaign promises.
He withdrew from the Trans-Pacific Partnership, ordered the beginning of work on his big wall for the southern US border (angering Mexico), and directed the executive branch to begin unwinding the Affordable Care Act.
On Friday he promulgated an executive order blocking refugees and visitors from seven predominantly Muslim countries from entering the country.
There are a number of reasons why Trump would want to be churning stuff out as fast as possible. One is to provide an image of action. Another is to clear executive actions off his desk to ready the way for tougher negotiations over big pieces of legislation, such as tax reform and full ACA repeal.
Third, the president and his staff may be just avoiding what they see as an entrenched Washington bureaucracy. Agency reviews can decay into lengthy rewrites and attempts to soften the impact of executive orders. Consultation with Congress expands a hundredfold the universe of possible leakers of information to the media.
The immigration order appears to have fallen into this third category.
White House officials say that several of the top immigration staff members in Congress did review the order’s language, and that the Justice Department’s Office of Legal Counsel reviewed it as well.
“This was not an executive order that was simply signed from the White House and suddenly transferred to the Department of Homeland Security,” said Chief of Staff Reince Priebus on NBC’s “Meet the Press” Sunday.
But it was clearly closely held. The Secretary of Homeland Security received his first full briefing on the new policy at the moment President Trump signed it into law, according to the New York Times. At airports across the US, Customs and Border Patrol agents appeared unclear and uncertain about who could come in and who could not. At first US green card holders were detained, though Mr. Priebus later said they would not be subject to the order “going forward.”
In a background briefing with reporters on Sunday, a senior administration official who requested anonymity said there was no “advance notice” of the immigration order due to clear reasons that he did not specify.
“I think everybody here can use their imagination to imagine 25 reasons why that wouldn’t make sense from a security standpoint,” the senior administration official said.
That said, the speed with which the immigration ban was produced and promulgated could be its undoing. Some legal experts said that the key wording in the order is unclear and its extent vague under the law.
Several pointed to the order’s inclusion of a provision prioritizing Christian refugees from predominantly Muslim nations. Such wording could make the order vulnerable to challenge for possible violation of the First Amendment’s of government establishment of religion, they said.
At the national security legal site Lawfare, editor Benjamin Wittes wrote that he was unsure whether the order had been reviewed at all by competent counsel, given its evident holes.
“The President has created a target-rich environment for litigation that will make his policies, I suspect, less effective than they would have been had he subjected his order to vetting one percent as extreme as the vetting to which he proposes to subject refugees from Bashar al-Assad and the bombing raids of Vladimir Putin,” Wittes writes.
On Monday the White House clarified the order by formally issuing guidance that said green card holders would be exempt from its provisions. But President Trump defended the order throughout the day with a series of his trademark tweets.
“There is nothing nice about searching for terrorists before they can enter our country. This was a big part of my campaign. Study the world!” he tweeted at one point.
Still, the whole uproar seems a crisis of Trump’s own making, says Jeffrey Engel, director of the Center for Presidential History at Southern Methodist University.
The administration was on no timetable but its own in terms of issuing the immigration order. It could easily have taken weeks to review wording and make sure confusion wouldn’t develop in the order’s first days.
“I’m just really struck by ... the slapdash and lackadaisical way of doing this,” Professor Engel says.