Immigration Order: Dumb Is Dumb, Not Unconstitutional

Anyone wishing to define the term 'fiasco' need only look at the events of the last several days around President Trump's effort to restrict immigration from several Muslim countries.
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Anyone wishing to define the term 'fiasco' need only look at the events of the last several days around President Trump's effort to restrict immigration from several Muslim countries. Calling the implementation and reaction reminiscent of a banana republic is a grievous insult of bona fide banana republics. Let us count the ways:

Knowledgeable observers can and should disagree in good faith about whether the policies are desirable for America. In the face of the numerous attacks on Americans (and others in Europe and elsewhere) in the name of various radical Muslim groups, and explicit expressions of evil intent from many, admittedly not all, Muslim institutions, it is far from absurd to seek to limit admittance to the US of those having a connection to such places. On the other hand, those concerned with the civil liberties ramifications of an exclusionary policy tied to religion or national origin must be taken seriously in order to maintain our constitutional protections. Debate over the merits of these policies is healthy for democracy.

What is not at issue is the botched implementation of these policies. It is great that the President is serious about keeping his campaign promises, but this can be achieved with deliberation as well. This back of the envelope approach with zero attention paid to legitimate reliance interests of those in or about to be in transit or holding green cards or having familial or other connections to such persons was simply inexcusably inept. The airport chaos and major inconvenience for so many is not surprising.

By the same token, one wonders if the sensible aspects of the policy go far enough. It is wrong to state, as Fareed Zakaria has done, that the designated countries have never been involved in attacks on the US. For example, Somalia was used as the training base for the 9-11 plotters and Yemen was the site of the Cole attack on a naval vessel. These failed states are no friend of the US and the Administration is right to be wary of those coming from there. However, it is true that Saudi Arabia has at least as much of a connection to US attacks, especially, but not only 9-11, and it is curious that it was not included. We can only speculate as to the rationale for the seemingly specious distinction.

What we have is a botched implementation of a questionable policy. What we do not have is a repetition of Watergate or a constitutional crisis, as Sen. Warren has referred to the situation in her customary understated manner, as she referred to Republicans as not merely wrong on this issue, but "cowards."

As one who closely followed Watergate as it transpired during the 1970's, let me note key differences.

On several levels, President Nixon was credibly accused of involvement in criminal activity. However misguided his policies may (or may not) be, this is not the case with President Trump. Even if the policies are determined in court to be unconstitutional, this does not make any of the President's actions criminal or even an effort to usurp the authority of other branches of government.

More fundamentally, Watergate Special Prosecutor Archibald Cox, the firing of whom triggered many memorable events, was tasked with investigating and, if necessary prosecuting the Watergate-related actions. His firing was an attempt to obstruct such investigation. Former interim AG Sally Yates was not tasked with anything in that capacity except serving as a very short-term administrative caretaker for DOJ until a successor is in place. A successor, Sen. Sessions, has been designated and confirmation is pending. No matter what, she will leave office within the next several days (or weeks at most). As such, nothing President Trump did should be seen as any effort to obstruct anything. Under the circumstances, her order to DOJ lawyers to not defend the President's Order should be seen as just a publicity stunt intended to impede the efforts of the administration.

Rep. Conyers is correct that the Administration's approach is more reminiscent of a reality show than a serious approach to governance. However, this does not make it criminal or "Nixonian."

Americans deserve and must insist upon far better than the recent slapstick routine we have seen. We should all speak out accordingly. However, when we do, we should not undermine our own credibility with totally erroneous and misleading historical comparisons.

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