Trump v. Hawaii: The Fallout
The Administration lacks forethought or a sense of strategy
Back in January of 2017 when the Trump Administration was new, I took issue with the ham-handedness of the original executive order on immigration and published a piece conceding the probable constitutionality of the EO but arguing that the disastrous rollout would give us months of confusion, lurching, and delay.
. . . 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.
Alas, the Administration 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, that it severely limited his ability to actually tighten the border. Turns out those enforced errors of the first weeks cost 18 months of hearings and injunctions and included rescinding the original EO and writing a new one (The one that finally made it to a US Supreme Court decision was the third).
The Court decision is straightforward, the practical effects are not.
In Trump v. Hawaii, the US Supreme Court did find what many of us knew was there, that 8 U. S. C. §§1182(f) “exudes deference to the President in every clause.” Had the original EO been written like the later one, we might have avoided much of the immigration fiasco of the past 18 months. The WSJ editorial on the decision declares, “The initial travel ban was an ill-conceived mess, but by the third try the Administration had done its due diligence.”
As anticipated back in January 2017, the injunctions did linger, and they did prevent tighter border enforcement. For those who believe that national security requires tighter borders, this was not a winning time.
Nor will things magically improve now that the Court has reminded us of the President’s powers. Nothing has been done to effectively execute those powers.
The poorly-considered whiplash move from the Obama Adminstration’s policy of ignoring enforcement — and a pox on his legacy— to this Administration’s draconian zero tolerance enforcement has not only damaged the President from a PR standpoint (although there is certainly the possibility that his reputation with detractors cannot go lower and that the loyalty of his supporters is not elastic), but also has restored the status quo of border enforcement-lite.
Customs and Border Protection Commissioner Kevin McAleenan said he ordered a temporary suspension of prosecutions of parents last week, within hours of President Donald Trump’s executive order in which he committed to stop separating families after they are detained.
The decision to at least temporarily end prosecutions of adults caught with their children could lead to the faster release of families because Immigration and Customs Enforcement only has three family detention centers, which officials said are near capacity.
Meanwhile, Sarah Sanders, the White House press secretary, acknowledged the Customs and Border Protection policy shift, but blamed it on the constraints the government faces. “We’re not changing the policy. We’re simply out of resources,” she said.
Turns out Sen. Ted Cruz knew what he was doing when he proposed emergency legislation last week to end family separations. We don’t have enough judges to decide immigration cases. But the Administration’s zero-tolerance policy was so intolerable that President Trump ended it, which took us right back to the non-solution of catch and release — because in the 18 months before he declared zero-tolerance, no one thought to speed up efforts to add judges or build detention facilities to make the immigration enforcement changes his presidential campaign was largely built on? Sanders is correct we are out of resources, but whose fault is that?
The hasty attempt to add facilites only complicated matters.
The Administration’s poor handling of the immigration issue from the start has meant that even the rather straightforward point — the President has broad discretion to control our borders — is now even more emotionally and morally loaded. Building more detention centers — such as ones that could house families together while they wait for a judge’s decision — will be harder to achieve now, and even if and when approved, they take time to erect. (Update: to illustrate, read between the lines here. We have a network of private companies who build such shelters and could have been building more family spaces over the last 18 months. That didn’t happen and detention is now tangled with family separation so local governments are breaking ties with some of these companies. All of this leans to more non-enforcement of any restrictions or screening.) The President has better chances of success at adding judges, but still that takes time. Thus, after almost two years and enough political drama for 10 years, actual immigration and border reforms remain elusive.
Well done.
The article referenced in the first paragraph on the original EO is here:
