President Trump’s executive order temporarily banning citizens from seven Muslim-majority countries and temporarily suspending refugee resettlement has led to an absolute debacle. The past four days seem like a law school exam hypo that could only be created by a deranged professor. In a dystopian situation, Customs and Border Patrol (CBP) were barring numerous valid green card holders from returning home. And a few hours after the order was signed, we learned that the President didn’t even consult with the Office of Legal Counsel (OLC) before signing the order. Instead, the executive order appears to be the brainchild of Steven Bannon—the father of the modern alt-right (i.e. White Supremacy) movement. To top it all off, President Trump fired Sally Yates Acting Attorney General on Monday because she refused to enforce his questionable executive order. Although the President was within his legal authority to remove the Acting AG, the move is undoubtedly an optical nightmare.

This situation has obviously been a huge mess. And even four days after Trump signed the executive order, I am still struggling to form a coherent response to everything. Here is my best effort.  

8 USC § 1182(f) Gives the President Wide Discretion to Ban Immigrants and Nonimmigrants; But the Executive Order May Still Be Unconstitutional As-Applied to Green Card Holders

Trump’s defenders have touted out 8 USC § 1182(f), passed by Congress in 1952, as a basis for President Trump’s executive order. And from § 1182(f)’s plain text, they may be right. Sale v. Haitian Centers Council, Inc. the only Supreme court case to cite 8 USC § 1182(f), discussed how this statute provides the President wide discretion to bar immigrants who may pose a security threat. Other circuit court opinions appear to confirm that § 1182(f) provides the President wide authority to restrict immigration for security reasons.

Nevertheless, the executive order as-applied to green card holders likely violates due process protections because it did not provide an adequate procedure to protect those already lawfully in the country. Although I am not an immigration lawyer and not familiar with the case law in this area, I imagine that some procedure needs to be provided before a lawful green card holder may be prevented from returning home; an executive fiat will not suffice.

Trump and Bannon Cruelly Targeted a Vulnerable Population

This mess was a result of the Trump administration’s gross incompetence. The President could have avoided this controversy by getting advice from OLC, the Secretary of State, and Secretary of Homeland Security. Instead, Trump committed Presidential malpractice by not consulting with his lawyers or his cabinet secretaries.

Anyone who knows me is aware that I am deeply cynical of President Trump. I do believe that he wanted to hurt people through this executive order. The legality or illegality of the executive order does not change how needlessly cruel Trump and Bannon were—or are. Ben White best summarized my thoughts on this executive order:

Put simply, I don’t believe that the stated purpose [of the executive order] is the real purpose. This is the first policy the United States has adopted in the post-9/11 era about which I have ever said this. It’s a grave charge, I know, and I’m not making it lightly. But in the rational pursuit of security objectives, you don’t marginalize your expert security agencies and fail to vet your ideas through a normal interagency process. You don’t target the wrong people in nutty ways when you’re rationally pursuing real security objectives.

When do you do these things? You do these things when you’re elevating the symbolic politics of bashing Islam over any actual security interest. You do them when you’ve made a deliberate decision to burden human lives to make a public point. In other words, this is not a document that will cause hardship and misery because of regrettable incidental impacts on people injured in the pursuit of a public good. It will cause hardship and misery for tens or hundreds of thousands of people because that is precisely what it is intended to do.

Scott Adams—the creator of “Dilbert” and someone who accurately predicted President Trump’s rise at every stage—has an interesting take on President Trump’s executive order. Adams notes that Trump needs to satisfy two extreme constituencies: the left and his base. He suggests that Trump’s order was intentionally vague and extreme to make the ultimate outcome (whatever that is) seem less extreme.

At the risk of looking foolish later, I disagree with Adams.  Trump could have made the left look foolish if he signed an order that did the same thing, but didn’t result in lawful green card holders being detained. This is because he already put the left on high alert and appeased his base by suggesting an actual Muslim ban during the campaign. Merely placing a time-definitive immigration restriction on seven countries identified by the previous administration looks much more reasonable than Trump’s initial proposal. And although one may disagree with Trump’s policy, it is certainly reasonable for the President to suspend immigration and arrivals from seven high-risk countries and refugee resettlement while his new administration reviews protocols.

But President Trump’s and Obama’s actual enforcement practices greatly differ. President Trump’s order was intentionally vague. It led to families being ripped apart. British Knights had their residency status thrown into flux. Doctors were turned away at the airport gates. This executive order was meant to, and did, reign fear on Muslims.

These Past Few Days Restored My Faith in Americans

I was blown away this weekend after seeing how many friends in the legal profession stepped up when people’s lives hung in the balance. Lawyers around the country rushed to their nearest airport to offer pro bono service. And so many lawyers offered pro bono service that many were being turned away. I have never been so proud of my law school classmates and profession as I was this weekend.

And the protests across the country also inspired me. Certainly, it was easy for many people to write off the Women’s March as a “astroturf” movement. But you can’t do that with the airport protests. These protests sprung up as soon as it became clear what Trump’s executive order was causing. Granted, as a right-winger, I probably disagree with the airport protesters on many issues. Nevertheless, I am proud to see so many people peacefully protest President Trump’s controversial order. That is what freedom looks like.

President Trump’s first ten days have been a stress test on American democracy. But if people stay vigilant and are willing to step up when called upon, I know the American experiment will continue long beyond President Trump.