We knew the policy was coming.  We should have guessed that Trump would botch it — both in terms of the actual policy and in terms of how it was implemented.  Now, we have a fustercluck of a “temporary” Arab ban policy.  There are potential legal issues involved which I will discuss below.  As a major cautionary note, I don’t do immigration law.  Despite what the U.S. Supreme Court may think, those of us who deal in ordinary criminal law don’t really get the nuances of immigration law nor all of the technical terms involved.

Before turning to the potential legal challenges, what has happened over the past five days is exactly why there are usual procedures for issuing executive orders.  While Trump would probably have still tended toward the outrageous in this policy, some of the problems might have been avoided if things had been handled better.  Instead, we have a policy statement masquerading as a policy.

Normally before an executive order is released, the White House staff has consulted with the effected agencies — here, State, Homeland Security, I.C.E., U.S.C.I.S., and T.S.A. — to get their input and make sure that everyone is on the same page at the time of implementation.  Additionally, the Office of Legal Counsel typically has gone through the order to make sure that it is legally defensible — not necessarily a winning defense, but at least no glaring fatal flaws for which there is not even a colorable defense — and clearly sets forth the policy. Continue Reading...