posted at 3:31 pm on January 29, 2017 by Allahpundit
Is Reince confused here about the policy, as Chuck Todd suggests at one point, or is Todd confused? Either way, who could blame them?
Homeland Security Secretary John Kelly and Department of Homeland Security leadership saw the final details shortly before the order was finalized, government officials said.
Friday night, DHS arrived at the legal interpretation that the executive order restrictions applying to seven countries — Iran, Iraq, Libya, Somalia, Syria, Sudan and Yemen — did not apply to people with lawful permanent residence, generally referred to as green card holders.
The White House overruled that guidance overnight, according to officials familiar with the rollout. That order came from the President’s inner circle, led by Stephen Miller and Steve Bannon. Their decision held that, on a case by case basis, DHS could allow green card holders to enter the US.
Before the President issued the order, the White House did not seek the legal guidance of the Office of Legal Counsel, the Justice Department office that interprets the law for the executive branch. A source said the executive order did not follow the standard agency review process that’s typically overseen by the National Security Council, though the source couldn’t specifically say if that included the decision to not have the order go through the Office of Legal Counsel.
Dropping an EO of this magnitude on DHS at the last minute, with little notice and little regard for its legality, on the say-so of Bannon and Miller is wacko. That’s not something you’d do if your top priority is rolling out a clear, well-tailored reform to immigration policy. It’s something you’d do if your top priority is making a nationalist splash to show that “Trump means business” or whatever. If he gets sued over it — and he will, a lot — well, then, that only proves the depth of his commitment to nationalism. Trump’s politics has always been a politics of confrontation. Signing a vague, sloppy order over which the left was sure to go berserk is thus a feature, not a bug, of the new system.
The most thoughtful, balanced explainers I’ve seen on what the order does and, importantly, doesn’t do come from David French and Dan McLaughlin. It’s not a “Muslim ban” and it’s not indefinite. It’s a 90-day ban on visitors from seven particular war-torn Muslim countries. Surreally, none of the four countries that produced the 9/11 hijackers are among those seven. But then, don’t blame Trump for that: As Sean Spicer pointed out this morning, the executive order actually relies on a designation made by the Obama administration in singling out nations of special immigration concern. The order also explicitly empowers the secretaries of DHS and State to make case-by-case exceptions to the ban for visitors whose presence is in the national interest, for instance, interpreters who helped the U.S. military in Iraq. To read the left yesterday, you’d think Trump had barred Muslims globally from ever entering the U.S. again. Nothing of the sort — although, er, Rudy Giuliani admitted last night that Trump had asked him to look into the possibility of a true Muslim ban when he first floated the idea in late 2015.
The dodgiest part of the EO is the fact that green-card holders are caught up in it. Those people aren’t “visitors”; they’re lawful permanent residents of the United States. That’s the source of the confusion between Todd and Priebus in the clip below. First Reince says that the ban doesn’t apply to green-card holders — which is not what Bannon and Miller decided and not what DHS now says — then he notes that of course they’re subject to extra scrutiny if they’re coming back from one of the seven countries included in the ban. Why would we need extra scrutiny of someone who’s already been heavily vetted by the U.S. government and been deemed worthy of eventually becoming a U.S. citizen? Charles Cooke (himself a green-card holder) doesn’t get it:
As a permanent resident myself, I don’t expect to be handed a passport or treated like a citizen (for what it’s worth, I like Josh Marshall’s conception of “thick citizenship”). But I do expect to be treated differently than a guy who just got off a plane for the first time — and not least because the process of obtaining a green card is tough. It took me a year from application to acceptance, and the vast majority of that time was taken up by the FBI. In addition to furnishing the government with my residential history, my employment history, and my criminal record (which is clean), I had to provide details of any clubs or societies to which I have ever belonged, to promise I wasn’t a terrorist or a Nazi or a communist, and to submit my fingerprints and a government-taken photograph on top. Which is to say: I had to go through the wringer before my card was issued. Because I was spotlessly clean my application wasn’t too involved, but I have friends whose days have been taken up by details of their parking tickets or their boyhood indiscretions or their penchant for getting fired. This is a tough nut to crack…
By necessity, the stories that will result from this measure are going to be absolutely horrendous. For reasons that are both good and bad, many Americans will carefully tune out the talk of refugees, and yet more will find it hard to care if there are no visas granted to people from countries that are far, far away. But when voters turn on the TV and see a parade of families from Queens who have been detained while checking in for their Emirates flight, the timbre will change upon the instant. As I’m fond of telling people who ask me “why” I “care about American politics,” I am not yet an American, but I do live here. My son and wife are here. I pay my mortgage here. I own a car here. I have a job here. And the same thing is true for green card holders from all over the world. If I were to be denied re-entry, I would be separated from my whole world.
Which way does the presumption under Trump’s order lie? Are green-card holders presumably barred unless they’re granted a special exception to enter, as Bannon, Miller, and DHS seem to believe? Or are green-card holders presumably admitted unless they seem dodgy when they’re being questioned by U.S. agents, as Reince seems to imply? (Citizens who visit the seven banned countries should also be subject to extra questioning, he insists.) A lot of people’s living arrangements over the next three months depend on the answer.
One other odd question: Why is the refugee ban in the order longer and more draconian than the ban on U.S. visitors? The refugee ban isn’t limited to seven countries; it’s global, and it lasts for four months rather than 90 days (except in the case of Syria, in which case it’s indefinite). Refugees are very closely vetted by the feds, precisely because they usually come from places where bombs are going off. It’s an 18-month to two-year process. You can understand why the average visitor from Iraq or Syria might warrant a closer look, but the refugee has already had a closer look. So why bar them? Again, it feels like gestural politics more than a reasoned policy choice. This is Trump’s (watered-down) way of broadcasting that he repudiates Angela Merkel and her open-door policy towards the Middle East, even though the U.S. admits waaaaay fewer refugees than Germany does.
Speaking of gestures, read this blistering critique of Trump’s order by lawyer Benjamin Wittes, who’s well-known for defending many Bush- and Obama-era counterterrorism policies. Trump’s order is an abomination, he says — partly because it’s incompetently written (which is what happens when you don’t run it by OLC first) but mainly because its haphazard application suggests that it’s not really about counterterrorism. It’s a political gesture. Wittes: “You do these things when you’re elevating the symbolic politics of bashing Islam over any actual security interest…. [T]his 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.”
Exit question: Is this about to turn into a constitutional crisis? Hmmmmmm.