Congress, Constitutional Law, Courts, International

“We Want [The Order] To Have Its Own Moment”: White House Delays Issuing New Executive Order On Immigration [UPDATED]

donald_trump_president-elect_portrait_cropped 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.

62 thoughts on ““We Want [The Order] To Have Its Own Moment”: White House Delays Issuing New Executive Order On Immigration [UPDATED]”

  1. I am fascinated by all these leaks with no names attached to them, just vague titles.

    Oh and guess what? Valerie Jarrett moved into Obama’s house today! Whee!!

    Oh and guess what else, Natasha and Webster – Sessions was asked whether he met with the Russians “concerning the election”. He correctly said no. In other news, Claire McCaskill claimed she nevah, evah, Ah mean NEVAH met with any Russians. Oopsie, NRO found 2 tweets from her announcing 2 separate meetings she had with…Russian officials.

    You people are beyond amusing.

    2. I think you have information correct from one of the Senators, however when asked under oath by the Senator from Minnesota in regards to Any Contacts, well you know, the proofs in the records.

      I agree Sierra, real names would be good. But then again, the propagation indoctrination teaches you well. foxtrot foxtrot Sarah.

  2. If Drumpt did not lie, did not try and hide like he does with his company and Taxes. Was a responsible American business person with values. I would probably subscribe to your appeal to intellects, since he is none of the above. He is lying to Congress, to the people and the rest of the world, but when his BS gets called out, its fake news, and when his secrets are revealed he will be impeached or something worse might happen.

    In Putins world, puppet are dispensable. His administration is lying about the contacts and Putin is no fool. Putins ego will only allow him to go so far.

    There is a book coming out from NZ that will list in detail all of the calls. It is expected to be released late spring if I recall correctly.

  3. The new executive order won’t have “its own moment” today or tomorrow, because the crisis du jour is Sessions getting caught bold face lying about meeting with Russians during the campaign. Are you brainstorming to come up with some way to defend this, Jonathan? Maybe he “forgot” about 2 meetings–oops, can’t use that excuse, because it would prove he’s senile or demented, and therefore not fit. Let’s see–I know! He didn’t intend to lie, it just happened, and anyway, they didn’t talk about anything inappropriate or important, so it really doesn’t matter. Also: Hillary was worse and she “got away with it”. Another gem: it’s just the Democrats pissed off because they lost the election. Or, maybe: Al Franken’s question wasn’t clear enough, and he didn’t understand the scope of what he was being asked. Anyway, he misunderstood the question, so it’s Al Franken’s fault, and, anyway, he was on SNL, so he’s insignificant anyway. Will these arguments get the job done? The nation’s top cop bold faced lying to Congress and helping a foreign government skew an election? Is that OK with you, Jonathan, you product of superior legal education and possessor of higher legal skills and talent? Is that OK with you? I can’t wait to hear you defend this one.

    Oh, and all of this flap is just due to those illegal leakers, so that’s the “real” problem here. No, the leakers are true patriots, exposing what’s really going on. They give us the stories we can’t get any place else. They are patriots and true heroes.

  5. Drumpt using lawyers? It would have to be written at a 3rd Grade level.

    I have read reports on the word choices that Drumpt uses, he is batting just about 3rd Grade.

    Pretty sad note for the University of PA.

    1. He transferred in. Donation was involved. Says he was at the head of the class but of course not true.

  7. Perhaps this time around the President should have the order drafted by lawyers.

    1. Oh snark, snark, snark.

      It wouldn’t matter if Jesus H. Christ himself wrote it, it would never pass muster for the Democratic Lefties.

      If Trump had written the Gettysburg Address, they would be carping about that, too. Nothing that Trump does will ever be good enough for them, because they need him to be super bad and awful to cover up for their own cognitive dissonance.

      Squeeky Fromm
      Girl Reporter

      1. Squeeky, thanks for returning to brighten my day. Using CNN’s Don Lemmon as a sort of proxy for the more typical “neutral,” “unbiased” opponents of President Trump, commentator Mark Dice has prepared the following humorous brief video on their take on him.

        1. Thank you Ralph!!!

          I will watch it shortly when my Cubase quits installing. I got a new version with my Pod Pocket, which I am learning how to use. One day I am just going to break down and buy a durn Variax, although I have no idea where I am going to put the thing. Heck, I am covered up in guitars now, and I don’t even know how to play one.

          Squeeky Fromm
          Girl Reporter

      2. Squeeky, as an avid follower of this blog, you know full well that if you examine all of the threads over the past year and a half, you will not find a single comment from me criticizing Mr. Trump’s values, morality, ideology, religion, lifestyle, hair, racial, ethnic and gender attitudes, or his interior design aesthetics, worthy subjects though they may be. Instead, on the rare occasion in which I engage in sarcasm, it is because I have earned the right.

        In this instance, I thoroughly read the entire executive order, researched the applicable law and wrote an opinion piece citing what I believed to be relevant authority. The responses on this blog were largely predictable and non-substantive. And yet, within a few days after I posted my views, the President announced that the promised appeal would not proceed and that the order was being withdrawn and re-drafted.

        Coincidence, you say? I think not. (I should add that had the original order been drafted by Jesus Christ, I would have consulted additional texts prior to publishing my column.)

        1. No. You would not have consulted extra texts. You would have just got a container of Morton non-iodized salt, and made a big circle with yourself outside of it, and performed a ritual to invoke some snarky effete limp-wristed demon to come to your aid and help perform your nefarious dark rites of Getrumphenschmieren.

          You can’t fool me! Get thee behind me!

          Squeeky Fromm
          Girl Reporter

      3. Squeeky – maybe they should have Martin Luther King, Jr. write the EO. Then it would pass muster with the DNC.

  8. Drumpt and his AC’s probably will not get it right this time either.

  9. These are rookie mistakes exacerbated by moles in the administration hellbent to undermine it at every turn. I suggest lie detectors and affidavits along with an outside security team (ex-Navy Seals well versed in intelligence) to monitor suspected “team members” from the Obama years.

    1. That’s a great idea, Mespo. I don’t think there are a lot of people this administration can trust. Our government agencies have become politicized and weaponized.

  10. “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?”

    Because it’s a sophomoric attempt to hide that the initial executive order and the next one are primarily political rhetoric while at the same timecreating job stability for the military-industrial complex, the oil industry, and the Fed’s printers.

      3. Girl Reporter: Squeeky (no pun intended) wheel gets the grease. The president’s an effen buffoon with the sensibilities of a cinder block.

        1. You might just be over-compensating. . .

          When people publicly rage about perceived injustices that don’t affect them personally, we tend to assume this expression is rooted in altruism—a “disinterested and selfless concern for the well-being of others.” But new research suggests that professing such third-party concern—what social scientists refer to as “moral outrage”—is often a function of self-interest, wielded to assuage feelings of personal culpability for societal harms or reinforce (to the self and others) one’s own status as a Very Good Person.

          http://reason.com/blog/2017/03/01/moral-outrage-is-self-serving

          Squeeky Fromm
          Girl Reporter

          1. Girl Reporter: Apparently, that’s what Ruth Bader-Ginsburg was doing, too. Right? What the elite are doing now is bad for the general population. Very bad.

            I wouldn’t be surprised if Goebbels used your argument on the German public in the mid-1930s.

            1. I hereby Estop you from bringing up Goebbels, because of the “Dirty Hands” doctrine. You lefty-type guys are telling whopping-a$$ big lies left and right hoping that sooner or later they an of Transmogrification will occur, and they will all become true. Like “Trump is sooo stupid” when the guy managed to run billion dollar type business, based on providing arms-length services to paying customers, and not doing stuff like trading on who-he-knew to get ahead like the Dumba$$ Obama, and other politicians.

              Goebbels was big on that kind of Big Lie stuff, too. So, my Order stands! You are hereby and fourthwith and fifthwith, and sixwith ESTOPPED! On penalty of Contempt of Squeeky!

              Squeeky Fromm
              Girl Reporter

        2. “The president’s an effen buffoon with the sensibilities of a cinder block.”

          *****************************************************
          Well, you’re close: The President’s a billionaire with a great family and is doing public service he doesn’t have to do to achieve success. I bet he wouldn’t trade you.

  12. The key here is lining up top attoneys to defend it. We know the DNC is going to be judge shopping again. Let’s see if they have the intestinal fortitude to try for a judge outside of where Hillary won?

    1. You will soon see who is giving all the problems to the Trump administration. I’ll give you 3 guesses, no one guess too easy, OK hint “fair share” Barry, Barry, Barry, So, So.

    2. The major key is writing it decently in the first place. All of the arguments raised in the court could and should have already been raised and fully explored during the drafting process.

  13. Under the decision of Korematsu the President today could lock up every American citizen who is Muslim in a concentration camp as long as the camp is in California.
    Let’s discuss Korematsu on this blog. It seems to get ignored.

    We can discuss both sides of the angle. Some will disagree with Billy boy Clinton when he gave Korematsu (the person not the opinon) a Medal of Freedom. Or was that Jimmy Carter who gave the Medal?

    2. WTF does Star Trek have to do with any of this stuff??? I guess if we re-write the Admission Program it would allow the various terrorist scenarios to be more solvable, but your allusion is going to be over most people of the people here’s heads.

      Squeeky Fromm
      Girl Reporter

  14. considering casual and sloppy work, review your grammar on this blog prof

  15. “good lawyering does not often materially alter the outcome of litigation but bad lawyering does.”
    *************
    Hey, that’s a trade secret!

  16. I’m still not so sure that first roll out wasn’t done that way on purpose as a way of igniting a fire of interest which led to heavy involvement and inturn led to some of the fastest judicial pronouncements and showed where the interest was to be found. Four Judges with four decision within less than a week!

    That left the WH staff with some clear issue areas to deal with and the ability to craft the real roll out to meet need plus reaction. This next one will be much tougher on the protect the country side, much tougher on the vetting prior to visa issue side regardless as a result.

    Using business methods instead of politics as usual methods gets the job done faster and lets WH lead the parade to areas they want concluded.

    Other way to put it is He’s leading them around by their tweeters especially judicial interests and the media.and in control of the temperature

    The speed of such a tactic is such that it’s very hard for those with bad motives to react and take advantage of this very small very tiny window and notice the window of unvettable seven gained no real advantage. They get 90 days ONLY if a visa was issued. during which time no visas are being issued.

    Score? Trump 1 Democrats zero.

    !

    1. Yup, it’s all part of some brilliant master plans by the rug. Ingredients: lies, blame, hate, incompetence, and dupes.

    2. True, lack of an apparent strategy inevitably becomes a strategy.

  17. In my view, the strongest argument in favor of the executive order (and the most glaring error the administration made in not emphasizing it before the courts) is the practical one, namely, that the executive branch is better equipped to make these kinds of decisions than is the judicial branch. The executive has all of the intelligence agencies at its disposal. It consists of intelligence professionals with the highest security clearance. Back-and-forth discussions over the details of the order are more amenable to the conference room than the courtroom.

    Let’s face it. Judicial fact finding is at best a stilted process. It is neither quick nor flexible. Judicial fact finders do not have the necessary expertise to make foreign policy decisions. The government needs to tell the court that the role of the judiciary is simply limited to deciding whether the order comports with the law. Courts are not designed to question the wisdom of the law or to determine whether the executive weighed the facts correctly.

  20. There are still a lot of Iraqi interpreters who helped our troops at great peril to themselves and their families, who are trying to come over. The process has been very slow, and the last I heard, they were running out of spots. I hope that they can work this out, with the proper vetting, of course. Because otherwise it is very likely that the Taliban will kill them and their families. Considering how we betrayed the trust of the doctor who helped us find Bin Laden, I hope we do better with our Iraqi interpreters. If we leave them out on a limb they will die. And since they helped us, they show a predisposition towards favoring the West. Of course, anyone hailing from Iraq should still undergo rigorous vetting, as it is still rife with terrorism.

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