by Michael Dorf
In addition to being appalled at the gratuitous cruelty and almost certainly counterproductive stupidity of President Trump's executive orders concerning refugees in general, Syrian refugees in particular, persons attempting to enter the U.S. from seven (not exactly randomly selected) majority-Muslim countries, and the thinly disguised religious discrimination underlying the favoritism for "minority" (i.e., Christian) refugees, lawyers and law professors in the circles in which I travel have been stunned by the incompetence of the lawyering or lack of lawyering that went into the formulation of these and other orders. For example, the executive order that cracks down on so-called sanctuary cities withholds federal funds from localities that do not do the administration's bidding, even though South Dakota v. Dole--which was decided nearly thirty years ago and has been repeatedly reaffirmed since then--makes clear that only Congress can attach conditions to federal funds disbursed to state and local governments. Any competent lawyer working at the high levels of government knows this.
As Benjamin Wittes writes in a very important essay on Lawfare, the incompetence of the Trump immigration orders apparently stems from the failure to consult with any of the agencies or personnel responsible for implementing the orders or to follow procedures that have been routine in prior administrations of both parties. Wittes, who wrote a chapter on military detention in my book Constitutional Law Stories, is generally hawkish on counterterrorism, but he is a rational and decent human being and so, like any rational and decent human being, he deplores what Trump is doing to refugees and other non-citizens. Accordingly, he explains that in the short run the Trump team's incompetence will tend to undercut the effectiveness of his malevolence, which is to the good, even as he also explains that in the long run the Trump administration's incompetence could pose grave dangers in the face of genuine national security threats (as opposed to well-vetted innocent men, women, and children fleeing for their lives from our mutual enemies).
I agree with Wittes on both points. Here I want to expand on Wittes's explanation for the incompetence of the Trump memos by pointing to their post-hockery. Litigators know a great deal about post-hockery. You have a client who has a weak legal position. In an ideal world, you or some other lawyer would have advised the client to take a different course of action, but it is too late for that now, so you must defend his, her, or its legal position by making arguments to a court for why your client should prevail. Sometimes it's impossible because the law is too clear. But often there is wiggle room in the law and so you find a way to argue that what, on its face may appear to be a weak legal position, should actually prevail.
Trump's White House team is in a roughly analogous position, with a crucial difference that I'll elaborate shortly. In an ideal world, someone would have persuaded Trump not to call for "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on" back on Pearl Harbor Day, 2015. Although that announcement no doubt helped him with the most xenophobic and religiously bigoted Republican primary voters, it earned condemnation from Republican and Democratic elected officials and was never going to be implemented. Thus, at some point during the campaign, the Muslim ban morphed into a ban on entry by people coming from countries where terrorism is a serious threat. However, Trump's egotism prevented him from saying something like "I was wrong to call for a ban on Muslims because religious discrimination is immoral and unconstitutional, so I'm now changing my proposal." Thus, the idea of a Muslim ban remained and remains in place to shape the policy.
When it came time for a small group of White House advisors to write the refugee and country bans into an executive order, they were still guided by the original proposal. As reported in a CNN story, when the executive order was first released, Homeland Security officials concluded that it did not bar permanent residents from the seven listed countries, but that decision was overruled by Trump reichsführer Steve Bannon and consigliere Stephen Miller. Neither Bannon nor Miller is a lawyer, and so their judgment that the order applies to green card holders (temporarily stayed by Judge Donnelly's order in the Darweesh case, at least for those who have made it back to a U.S. port of entry), was almost certainly not based on a close parsing of the executive order they themselves apparently played a large role in drafting. Nor was the judgment likely based on their own assessment of their own intentions in drafting the executive order just days earlier.
Rather, I want to suggest that the interpretation was guided first and foremost by their recollection of Trump's campaign rhetoric. They understood their job as giving effect, insofar as possible, to Trump's promise of "a total and complete shutdown." The order could not plausibly be construed as totally and completely shutting down Muslims entering the U.S., given its language. But insofar as it contained any ambiguity, Bannon and Miller were guided by the imperative to convert into policy as much as they could of Trump's original pronouncement.
To be sure, unlike a lawyer with a client who acted in a way that the lawyer now regrets but cannot change and thus must try to defend, it is likely that Bannon, at least, and possibly Miller too, were enthusiastic about carrying into effect as much as they could of Trump's idea for a total ban on Muslims entering the U.S. But I want to suggest that even if they were more neutral towards the idea, they would have found themselves being guided by Trump's initial aspiration for the policy. Indeed, putting aside the question of the policy's application or non-application to permanent residents, the whole executive order itself is an exercise in post-hockery: It is an effort to give as much effect as possible to some idiotic and evil thing that Trump happened to say in the campaign.
That brings me, finally, to an important distinction between litigation post-hockery and policy post-hockery. A lawyer who must come up with a post hoc legal justification for a client's action has the advantage of only needing to argue that it fits into a gap or ambiguity in the law. The lawyer need not argue that the client's course of action was best, all things considered, or even a good idea. By contrast, a presidential administration adopting and implementing a new policy must argue in the court of public opinion that the policy actually makes sense. That, however, is impossible, not only because the particular policies don't make sense but because they were never intended to make sense. The statements that the Trump White House has been converting into executive orders were not in any way the product of Trump's having carefully studied even far-right white papers on immigration or anything else. They were the product of his own impulsive bigoted instincts and his showman's talent for gaining attention by hearing what outrageous things others in his party were proposing to do and then going much further.
Thus, the executive orders are indeed the product of both malevolence and incompetence, just as Wittes argues. But they are also the product of a doomed effort to turn blind and stupid rage into law.