U.S. federal judge James Robart

President Trump should withdraw his executive order suspending refugee admissions into the United States for 120 days and blocking admission of citizens from seven Middle Eastern countries for ninety days. It seems clear now that pursuing the case through the courts is a fool’s errand that will not only end in defeat but also in a judicial decision that may tie the president’s hands in a critical area of national security. The best approach now for the president is to cut his losses, regroup and re-strategize, and live to fight another day.

 The executive order, while entirely defensible and appropriate as an exercise of the President’s Article II powers, has gotten caught up in a frenzied over-reaction that has overwhelmed and obscured the constitutional and security issues at stake in the controversy. The order in fact is fairly modest as these things go, suspending admissions into the country for brief periods of 90 or 120 days while the government evaluates the process by which applicants from those seven countries are screened and admitted. It is not a “travel ban” nor a “Muslim” ban, as some are saying; nor is it a ban on legal immigration into the country nor a closing of the borders. Least of all does it represent a symbolic demolition of the Statue of Liberty. But that is what is being said, and the extreme voices are drowning out the sane and moderate ones, which increasingly seems to be par for the course in American politics at the present moment.

As anyone might have predicted, a coterie of federal judges quickly entered into the controversy in their belief that nothing important can transpire in the United States absent judicial approval. It is stunning to realize that a single federal judge (out of roughly 700 federal district court judges) can issue a nationwide ruling that blocks the executive branch from acting in a core area of national security—though, admittedly, this is not the first time something like this has happened. By now it should be expected that any controversial issue is bound to wind up in front of federal judges before long. The intervention of the west-coast judges is partly an expression of raw politics driven by a desire to stick it to the president, and, more profoundly, it is partly an expression of a view strongly held in some legal quarters that there are no areas of American life, including those involving war, peace, and national security, that are beyond the purview of judicial scrutiny. It is thus pointless to make the argument before these judges that some presidential decisions are outside the scope of judicial review. They don’t believe that, and since they get to make the call they are bound to call it in their favor.

Thus the president should withdraw the order before the courts have a chance to rule on it. He is going to lose anyway, and a negative decision will tie his hands and the hands of his successors in any future effort to control admissions into the United States. Right now the president is being hurt by the rushed implementation of the order, with horror stories of people with lawful visas being blocked from entry into the country. The horror stories are being conflated in the press with the lawful elements of the order in such a way as to undermine the legitimacy of the entire order. A pause or withdrawal of the order would give the president and the Department of Justice an opportunity to learn some lessons from this controversy that could be applied if and when the order is reinstated down the road.  

In a worst case scenario in the courts, it is within the realm of possibility that the federal judge in Seattle or the Ninth Circuit Court in San Francisco may issue a truly bizarre decision that citizens and residents of foreign countries have a constitutional right to enter the United States. Such a ruling in itself might well provoke a constitutional crisis. It is well worth checking and forestalling such an outcome today, even if one is confident that the Supreme Court would eventually overrule it—which, given the current four–four split, is a doubtful proposition. The only way to accomplish that is by withdrawing the order.

So: withdraw the order before the courts can rule. Moot the case. Give your Attorney General some time to get his team in place and design a strategy for going forward. The mediocre quality of the Department of Justice’s argument before the Ninth Circuit underscores the importance of filling those vacant slots in the DOJ before this kind of case comes up again for argument. Next, buy some time to allow the president’s Supreme Court nominee Neil Gorsuch to go through the confirmation process in the Senate. The confirmation process will be easier for him if he is not freighted by this controversy or by a truly awful decision from the federal courts. Postpone the fight for another day when the balance of forces is more in your favor.

From the president’s point of view, there are many ways to “skin the cat,” since he is in a position to set the terms for any future debate. The initiative is in his hands. If the president withdraws the order now, he is always free to re-issue it in a few months’ time when his team is in place, but with some revisions in the new order to justify the claim that it differs from the previous one. A few ill-conceived elements of the original order can be screened out in a revised order. If the president’s legal advisors are clever, they may arrange to have a challenge filed in a friendly judicial venue to uphold the order before opponents can file their claims in their own venues. With a conflict in the lower courts—one in favor and one against—opponents would lose some of the leverage they now claim due to “home cooking” in the Ninth Circuit. In addition, due to those conflicts, cases would move quickly through the Circuit Courts to the U.S. Supreme Court for ultimate resolution, but then (with a new justice in place) with a decent possibility that the presidential claims will be withheld.  

At the same time, there may be other avenues, more quiet and less controversial, toward the same ends. The president, using his authority as head of the executive branch, might direct the Secretary of State to ask U.S. embassies in certain countries to impose “extreme vetting” on applicants for travel to the United States, such that very few visas are actually approved. Directives of this kind are within the discretion of the executive branch and are not all that easy to challenge in the courts. Such an approach would not be a “ban” on travel or even a “pause,” but it would very much look like one in terms of actual outcomes, at least temporarily, which was the point of the order in the first place. 

Finally, due partly to the intervention of the courts, it might be to the president’s advantage to work with the Republican Congress, and especially with Speaker Paul Ryan, to cut some of the funds available for some classes of refugees and foreign admissions, and to move forward with Sen. Tom Cotton’s bill limiting immigration levels in the future. This approach would be preferable to the executive order because it would deal with the problems identified by the president in a more durable way, which would likely appear more legitimate and would be less subject to judicial scrutiny. A new budget would impose structural limitations on some foreign admissions into the country that, as a practical matter, would be difficult to undo in the courts. If the funds are not available, those who do not have a right to enter the United States cannot be vetted and admitted—in which case the limits would be a result of a budget problem, and could not be presented as a “bias” problem subject to reversal in the courts on the basis of either the Constitution or the 1965 Immigration Act. 

This controversy is going badly for the president because the game is rigged against him. A narrow order dealing temporarily with refugees, travelers, and would-be immigrants from seven carefully designated countries is being portrayed falsely as an open-ended attack on immigration, immigrants, and the open-door traditions of the nation. The judges think they are acting in the hero’s role by checking the president’s powers and reversing his order. The best way for him to proceed now is to get out of the “jam,” and then prepare to fight again in a few months’ time in a manner and setting of his own choosing.

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