Donald Trump is angry, and he does not hold back. After a federal judge in California temporarily restrained his Executive Order on Immigration, the President lashed out, repeatedly, at the judge who issued the order, and against the court system in general. Just yesterday morning, in two tweets, he called the judge’s decision „horrible, dangerous and wrong“ and suggested, even more ominously: „If the U.S. does not win this case..., we can never have the security and safety to which we are entitled.“
The attacks on judicial review and the system of checks and balances are deeply worrying. Yet more worrying, however, are his repeated claims that the judiciary would be to blame in case an attack ensues. This is irresponsible, and it is blatantly false. It must be emphasized now, before any such attack may happen: The President is the only one to blame for the mess we are in. And any attack we may suffer as a consequence of that will be on him and his administration alone.
For this point it is almost secondary whether his Executive Order is good policy, or will help radical Islamists in their recruitment efforts, as many have said. The determination of what keeps the country safe is the domain of the President. He is entitled wide discretion in this. And he has to answer if he gets it wrong. Just ask George W. Bush.
What the President is not entitled to, however, is issuing executive orders that violate the law. Nor is he entitled to total deference by the courts. Especially in a case like this.
Reasonable minds differ on whether the executive order is legal or not, and the courts will eventually give an answer. But the President could have avoided the litigation altogether. Given the wide discretion that Constitution and statutes given to the President in matters of national security, it is remarkable that the administration did not manage to draft an executive order that would safely withstand legal challenges. The reasons lie with the President. Trump's own statements about the racial underpinnings of the executive order that are now being used as evidence of the true intentions underlying the Order. The White House’s shockingly incompetent drafting has made the Executive Order vulnerable. And the President’s repeated public attacks on the courts make it virtually impossible for judges to cave now. In fact, the White House has undermined ist own order so much that at least one observer suspects malice: the administration must have deliberately wanted to lose in the courts in order to be able to blame the courts for a possible later attack. A truly scary thought.
No matter whether the mess of the immigration order is a consequence of incompetence or actual malice (or both), blaming the courts for his own failures is absolutely irresponsible. If, as the President claims, we are entitled to „safety and security“, then it is his job to actually achieve that. And that requires him to remain within the generous limits that the law lays down and to use a carefully considered process. As long as he is unwilling or unable to do that, any attack on the country that results will be his responsibility.