Trump's Immigration Order Unleashed a Policy Disaster
The Trump administration's first attempt at implementing complex policy via executive order has been blowing up on them since it was signed on Friday. As Benjamin Wittes put it at Lawfare, the immigration ban targeting seven Muslim-dominated countries was "malevolence tempered by incompetence," and it was met by massive protests, several legal setbacks, denunciation by most major religious movements (yes, including evangelicals), practically unanimous condemnation by Democrats along with a fair number of Republicans (including members of Congress), and a partial (so far) retreat by the administration.
So why is the new administration botching things so badly?
I've seen a strategic explanation, and I've seen a personality-based explanation for why this appears to be a gang that can't shoot straight. I'll supply a structural one: Perhaps it's because they're trying to do policy from the White House, and (as I explained long before Trump showed up on the scene) that's usually a recipe for disaster.
Wittes explains that this is apparently a White House operation in full:
NBC is reporting that the document was not reviewed by DHS, the Justice Department, the State Department, or the Department of Defense, and that National Security Council lawyers were prevented from evaluating it. Moreover, the New York Times writes that Customs and Border Protection and U.S. Citizen and Immigration Services, the agencies tasked with carrying out the policy, were only given a briefing call while Trump was actually signing the order itself. Yesterday, the Department of Justice gave a “no comment” when asked whether the Office of Legal Counsel had reviewed Trump’s executive orders—including the order at hand. (OLC normally reviews every executive order.)
We've seen this before. Presidents or their staff decide to work around executive branch departments and agencies, and the results are generally awful. That was the case with the Iran-Contra affair during Ronald Reagan's second term, when National Security Council staff tried making and executing policy and produced a scandal that crippled the administration. But one can also understand Watergate and Richard Nixon's presidency as suffering from the same problem. Which brings me to one of my favorite Watergate quotations, in which John Dean tries to explain to the president why it's a problem to pay hush money to the burglars:
Dean: Now, where, where are the soft spots on this? Well, first of all, there's the, there's the problem of the continued blackmail ... which will not only go on now, it'll go on when these people are in prison, and it will compound the obstruction-of-justice situation. It'll cost money. It's dangerous. Nobody, nothing -- people around here are not pros at this sort of thing. This is the sort of thing Mafia people can do: washing money, getting clean money, and things like that uh, -- we're -- we just don't know about those things, because we're not use to, you know -- we are not criminals. (emphasis added)
The entire Watergate saga began when Nixon's efforts to increase domestic surveillance and to disrupt domestic opposition were stymied by the FBI. Nixon then decided to do it anyway out of the White House, and hired the men who eventually became known as the "Plumbers" to do things such as, say, break in to the office of an opponent's psychiatrist to dig up dirt on him. (They weren't pros at that, either).
Presidents themselves certainly don't know how to carry out policy, whether it's laundering hush money or choosing the appropriate gifts for the Iranians you're scheming with or drafting an executive order changing visa, immigration, and refugee programs. Nor is it easy to hire people for the White House with the detailed knowledge of procedures for doing such things. The expertise for such things and thousands more are found in all those executive branch agencies.
Presidents (and White House staff) are often tempted to do things themselves because with expertise comes bureaucratic procedure, which slows things down. All administrations arrive with bold plans to execute swift changes, and Trump's is no different. But shortcuts are dangerous.
They also are tempted to do things themselves because executive branch agencies are likely to push back against presidential priorities. But the truth presidents need to accept is that such pushback isn't arbitrary. It's a way for the president to learn about the legitimate opposition of established groups within the political system -- opposition the president needs to know about before he or she acts. It's not that presidents should always give in to opposition; it's just that without fully understanding who objects to a presidential plan (and how and how strongly), presidents can't understand the risks of action and make informed decisions when to give in, when to compromise, and when to fight. In that sense, the entire executive branch is a giant information-generating machine available to the president, one that they are foolish not to take advantage of even if the information isn't what they want to hear.
Even if Trump had used the proper executive branch departments and agencies in formulating his policy, it's likely the result would have sparked opposition, and perhaps strong opposition. But the administration could have built alliances, too, and avoided some unnecessary battles. Did Trump really want to pick a fight with veterans (and active duty military) upset because Iraqis who had worked with U.S. forces during the war were being abandoned? Would proper procedures have picked up on the strong opposition of religious organizations, and provided a chance to head off that public relations problem either by accommodating some of their requests or at least knowing to mobilize Trump-friendly churches? At the very least, bringing in the relevant agencies might have produced executive action which was easier to implement and which would hold up better in court. Even if it sacrificed a little speed and, maybe, some of the portions of the original order which didn't survive anyway.
If Trump doesn't fix this tendency to ignore the executive branch -- and it's almost certainly going to require significant personnel changes for that to happen -- expect more fiascoes.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
To contact the author of this story:
Jonathan Bernstein at firstname.lastname@example.org
To contact the editor responsible for this story:
Mike Nizza at email@example.com