Pres. Trump’s second executive order should have survived review in the District Court in Hawaii. The revised order was a conscientious effort to meet the objections of the Ninth Circuit. The first-order was appropriately seen as unrefined and possibly religiously discriminatory without providing adequate due process to those who already had relationships with the United States based on permanent residency or issued visas. The revised order is not drawn along religious lines; it is irrational to view it as a Muslim ban both because it’s focus is clearly whether or not the existing screening procedures are capable of supplying us with the best information that those entering our territory mean no harm. The very fact that the president exempted Iraq from the suspension indicates that the focus was national security threat and not the religious nature of the six countries incorporated within the revised executive order. In addition, the second order has multiple waiver provisions which could have easily handled exceptional cases of hardship.
Let me be clear: I disagree with the president’s policy. I suspect the district judge in Hawaii did as well. However, it is neither my call nor the judges call to say what is and is not correct policy if the policy is drafted in accordance with the law. The second executive order should have been seen as meeting those legal requirements and it can be hoped that the district judges in Maryland and Washington who have yet to rule on the second order will disagree with the judge in Hawaii. At a minimum, it was inappropriate for the judge given the closeness of this issue to enjoin it nationwide especially in the context of a case where there was no showing of immediate and irreparable harm on the part of anyone.
Again, as a matter of policy, I think the suspension of both the refugee program and the entry of foreign nationals from the six nations previously identified by the Obama administration as posing unusual dangers can surely be debated. As I see it as a former diplomat, as well as head of the office of legal counsel and the Department of Justice, one of the most profound weaknesses of the first and second travel Executive Order was that neither supplied any tangible idea of how extreme vetting would differ from the procedures presently used; instead, both orders put the burden of developing these additional procedures on the exporting countries subject to the review of the secretaries of state and homeland security, among others. Yet, again, even as the need for pursuing executive orders of this type may be unnecessary, it has to be admitted that both on statutory and constitutional grounds it is the president who makes these policy judgments and not the courts. With respect to the first travel ban the court was upholding the rule of law because it clearly had individuals with protectable interests who had not been appropriately provided for. That is not the case with regard to the second travel ban and it would seem that the district judge in Hawaii had an acute inability to distinguish candidate Trump from Pres. Trump. Candidate Trump spoke harshly in a way that was offensive to those of the Muslim faith. Pres. Trump has not dealt with the subject in that manner in the second executive order. With due respect, it is a failing of the judiciary to not recognize the authority of the presidency even when it may dislike the president or the mean-spirited persona that characterized his campaign on this topic.