Last week, President Trump issued his Executive Order on freezing refugee resettlement in this country. At first, it appeared the Order applied only to refugees seeking entry into this Country. While people may disagree with the policy, it had a certain logic. As I noted oh so long ago, the flaw in our refugee policy was the refusal of those in power to explain how and why we are taking the refugees.
Why is it so hard for politicians to tell the voters, a/k/a the people who elected them, why they should accept the refugees? Simply mouthing banalities such as “It is the right thing to do” is pointless. (If the Road to Hell is truly paved with good intentions, then “The Right Thing to Do” is surely engraved on one of the bricks.). It is not only pointless but also an admission by the speaker that s/he has no idea why this is, only that this is what “correct thinking” people say to one another. Such vacuous statements do not inspire confidence in leaders. It generates distrust and feelings that those in power are trying to pull a fast one. The belief that the current political parties care more for outsiders than citizens has a corrosive effect on the body politic.
I even noted that if you don’t do that, politicians will drive the people to those parties that will:
And if those in power won’t listen to the people, the people will turn to those who will. This is why the National Front, the Danish People’s Party, Freedom Party of Austria, Jobbik, etc. are all growing in political strength in Europe. In Germany, the Christian Socialist Union, by no-means a far right organization is showing nationalist tendencies as unease begins to grow. People are concerned, some frightened. And if responsible leaders will not address and allay those fears, others will exploit those concerns, often to the detriment of the citizenry.
The prior administration refused to do this. In fact, in 2015 the Obama Administration doubled down, even when Democratic governors want more transparency to convince citizens the vetting process was sufficiently rigorous:
On the call several Republican governors and two Democrats — New Hampshire’s Maggie Hassan and California’s Jerry Brown — repeatedly pressed administration officials to share more information about Syrian refugees entering the United States. The governors wanted notifications whenever refugees were resettled in their states, as well as access to classified information collected when the refugees were vetted.
[White House Chief of Staff Denis] McDonough responded to Brown that there was currently no process in place to give states such information and the administration saw no reason to change the status quo.
So for at least 18 months, the government has failed to explain the vetting process. So it shouldn’t be that surprising that the new President campaigned on restricting refugee resettlement and has actually followed through on his campaign promise.
(As an aside, marvel at this CNN piece where the reporter seems absolutely gobsmacked that an elected official is actually following through on his campaign promises. Regardless of your opinion of Trump or his policies, isn’t it telling that a vow to do what a candidate promised is described as “an obsession”?)
Now had this been the end of the Executive Order, there would have been some harrumphing about the unfairness to refugees and nothing more. And in the early hours, that’s what you got. Progressives posting photos of the Syrian Child killed in 2014. (The photo which was the basis for this post.) What a child killed during the Obama years has to do with the current President eludes me. But in the long run, that was a moot point. The Trump administration not only screwed up the implementation of its Order, but they also turned up the incompetency to 11.
It turns out, the ban also included anyone from the seven designated countries, not just prospective refugees. (And it should be noted it was not Trump who designated the countries, but then-President Obama.) This meant people who had already been approved and were en-route to the US were now banned. Folks traveling on work or education visas were affected. It also meant people who were coming tothis country because they risked their lives to help the United States Military were denied entry. But more importantly, the ban included people who are Green Card Holders.
This is where sheer incompetency came into play. A lot of Americans know someone who has a green card. I have a sister in law who is in the United States on a Green Card. Whereas you may never meet a refugee resettled into this country, you will probably know a Green Card Holder. Trump’s policy became personal for a lot more people. Every one of those Green Card holders, even if they weren’t from those 7 countries paused and wondered if this could happened to them. It was these people and their friends and family who are American Citizens by birth and not the professional protesters who came out in droves to America’s airport to stand athwart history and yell, “Stop!”
(Aside #2: You know the government has fundamentally misread the mood in the country when people decide to willingly spend time in an airport.)
And it was not just in coastal cities such as New York and Los Angeles, but places like Nashville; Tennessee. All across Red State America, there were protests: Montana; Idaho; Nebraska; Utah; and so on. Even right-leaning legal blogs were expressing disbelief. The Federalist (which is admittedly conservative/libertarian) has already posted on the need for the Administration to fix the Order. Benjamin White over at the Lawfare blog has a very thoughtful take-down of the Executive Order from a conservative point of view and how eff’ed up it was implemented.
(Aside #3: One problem I saw on social media in reaction to White’s piece was the citations it had to CNN, NBC, etc. Pro-Trump folk dismissed these reports out of hand simply because of the long history of open bias against the President. This is what I have long been concerned would happen- people discounting news stories because of the source).
While some supporters of the Order claimed it didn’t cover Green Cards, the evidence on the ground showed the Border Patrol thought it did. Reality always trumps Theory. And if it wasn’t meant to apply to Green Cards, it’s not clear why it took Homeland Security until Sunday to issue a clarifying order on the topic.
(Aside #4: Proponents of the ban notes Customs does have the authority to approve exceptions on a case by case basis. Quick show of hands: do you think a nameless faceless bureaucrat is going take the easy route and simply deny a request? Or do you think said nameless faceless bureaucrat is going take the time to draft the documentation to support his/her reasoning for making an exception?)
Trump took what should have been a minor issue with little risk (and minimal newsworthiness) and turned it into a full blown political disaster. According to Real Clear Politics, as of this morning, his approval rating is underwater by 1.9 points. In the Gallup tracking poll, Trump has reached majority disapproval in record time. Rasmussen had Trump up 13 points this time last week. He has since dropped 11 points to 51/49. The ACLU raised $10 million dollars over the weekend. That’s more than it normally raises in a year. Say this for the President, he has managed to bring people together: Not only does Corey Booker disapprove of Trump’s Order, but so does former Vice President Dick Cheney. Most Republicans were forced to thread the needle of pointing out the need for better vetting while condemning the implementation of the ban. (Congressman Justin Amash being an exception. He came out forcefully against the ban).
Make no mistake about this: the fact you are not seeing full-throated defenses of the Executive Order is not a good sign for the President. Congressional Republicans, even in Red States, are noting the unpopularity of this action. They do not seem to be willing to follow path Democrats took in 2009 to blindly follow President Obama, political consequences be damned.
And given these facts, this would be a good time for good folk to reach across the aisle and work in a bipartisan manner. So of course, no one did that. Senate Democrats introduced a bill that had zero chance of success. Meanwhile, Obama appointee and Acting Attorney General (until Jeff Session is confirmed) Sally Yates decided to issue a directive to US Attorneys to not defend that law. And upon what grounds is this unprecedented step based upon? “At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.”
As Jonathan Adler noted:
Yates does not claim that she cannot defend the executive order because it is unconstitutional or because the Justice Department would be unable to offer good-faith arguments in defense of its legality. To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not “wise or just.” This is quite significant. I am not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis.
I agree with Adler. As an attorney, I find her reasoning dangerous. She is saying, in effect, “I don’t like the law, so don’t defend it. Had Yates come out and said, “This law is illegal based on the decision in X v. Y”, she would have had a more solid justification for her actions. And it really shouldn’t have been that hard. She could have used David Bier’s December 8, 2016 post at CATO’s website as a starting point. Or maybe this post from Caleb Kruckenberg.
Had she made arguments as to why the law was Unconstitutional, she would have had more support. Indeed, one of the favorites to be nominated to the Supreme Court, Judge William H Pryor, gave a lecture in 2014 that made clear his view that an Attorney General, whether Federal or State, elected, appointed, or acting, has no obligation to defend a law if he or she in good faith believes that law to be Unconstitutional. Nothing in Yates’s statement reaches that level. It is merely a statement that she doesn’t like that law, so she won’t follow it. And that’s why it was unsurprising she was fired.
What’s amazing is the number of people on the left who are supporting Yates for her refusal to obey the law. Was it really only three years ago Progressives were demonizing Kim Davis for her refusal to obey a law she didn’t like? If Yates is to be hailed as a latter day Thomas Moore, then Kim Davis must also be so lionized.
It is this “we will support people doing the wrong thing so long as they’re on our team” mentality that is causing so many of our political problems. This is why last week’s release by the Economist’s Intelligence Unit of its Democracy Index for 2016 is so troubling. For the first time, the United States was demoted from Full Democracy to Flawed Democracy. But, contrary to the belief of Progressives, it was not the election of Donald Trump or baseless claims of Russia rigging the vote that caused the demotion:
Popular trust in government, elected representatives and political parties has fallen to extremely low levels in the US. This has been a long-term trend and one that preceded the election of Mr Trump as US president in November 2016. By tapping a deep strain of political disaffection with the functioning of democracy, Mr Trump became a beneficiary of the low esteem in which US voters hold their government, elected representatives and political parties, but he was not responsible for a problem that has had a long gestation. The US has been teetering on the brink of becoming a “flawed democracy” for several years, and even if there had been no presidential election in 2016, its score would have slipped [to Flaw Democracy]
Trump was not the cause, but an effect. If you want to blame someone for the fall from grace, it would be those that have been in power for the last decade. As Jesse Walker has noted, “The best-case scenario for the Trump years has always been that he’ll kill the imperial presidency through sheer incompetence.”
The problem is, especially for libertarians, it is probably counter-productive for us to keep shouting out loud to Progressives who suddenly see the dangers of an all-encompassing Federal Government and Imperial Presidency, “Where the <bleep? were you for the last 8 years?” It is far better for us to get a migraine by screaming it only in our heads while smiling and saying, “Welcome to fight to reclaim the Constitution.”