Media is reporting that President Donald Trump will issue a new executive order on immigration this week but, according to a source this morning, not today. The order is expected to correct glaring problems in the first order. I have said previously that the original order was poorly drafted, poorly executed, and poorly defended. The Administration will have to significantly improve the lawyering behind any new executive order. Indeed, the law still favors the Administration and the disastrous rollout of the first order was the result of astonishingly casual and frankly sloppy work. As I have previously stated, good lawyering does not often materially alter the outcome of litigation but bad lawyering does. This is one such case. With case law favoring the Administration, the improvisational character of the first order created a target rich environment for courts.
Even before addressing the content of the new order, the new rollout already has one discordant element. I previously criticized the performance of the Justice Department in the defense of the original order, including the rather lackadaisical arguments and speed of the defense. The Justice Department seemed unprepared for highly predictable arguments and unprepared to move for an immediate appeal. That tended to undermine the repeated arguments that time was of the essence for the national security concerns underlying the order. District Judge Leonie M. Brinkema’s ruling in my view is vulnerable to appeal, but she voiced the skepticism over the national security claims. She cited in the hearing “startling evidence” from national security professionals that the order “may be counterproductive to its stated goal.” In a national security claim, it is essential for the government to maintain those claims in every filing and argument. Yet, the government did not appear to be in any particular rush. I have moved citizen suits with a greater sense of urgency. Now, after the Administration indicated that it would release the new order as early as last week and then Wednesday, it was postponed. To make matters worse, the Administration continues to leak damaging tactical information. In this case, media reportedly that officials admitted that they delayed the issuance of the new order so that it would not undermine the favorable press coverage after the State of the Union. Even if true, why would anyone in the Administration make such a disclosure? In the end, the Administration has undermined its claim of urgency by these delays and continued leaks.
Now, after everyone was told to expect yet a new rollout on Thursday, a senior executive officer is being quoted as saying that it will be delayed again to guarantee that the order “has its own moment.” Once again, after a torrent of criticism over the lack of urgency, this statement further erodes the credibility of the Administration. It is perfectly bizarre to hear these statements from what appears entirely tone-deaf, tactically-challenged aides. An executive order is not like some debutante that longs for its own moment like a coming out party at Mardi Gras. It is intended to protect national security and the “moment” (according to the government’s own filing) has already passed.
There are reports that Iraq might be dropped from the list of countries subject to the restrictions. There are reportedly top officials at State and within the national security system advocating the change. However, it might come at a political cost in undermine the original costs. I do not believe that there are grounds to treat this as a “Muslim ban” and agree with the Administration on much of the case law supporting their claims. The Administration has argued that these countries lack sufficient vetting procedures and reliable systems for evaluating possible entries into the country. Those arguments generally are accorded great deference by the courts and advance a rational basis for the changes.
One glaring error was the failure to exclude green card holders. Instead, the Administration improvised a couple days later with an order from the White House Counsel. That created an easy attack point for challengers and supplied the very standing claims that challengers needed to maintain their actions in court. It was an example of how bad lawyering is more impactful than good lawyering in litigation.
The second executive order will likely address such errors and shift the litigation to better ground to fight on for the Justice Department. However, the best of ground will not be a substitute for the worst of advocacy. The order needs to be better drafted and the team needs to be better prepared. If we see such improvements, there remain many of the same issues that led to the first challenge. I still give the Administration the advantage ultimately under the law. I believe that critics are overplaying the strength of statutory provisions to block such a measure.