Fred Henneke, Attorney & Counselor-At-Law
Late last week President Trump issued an Executive Order restricting the admission of refugees and/or persons from 7 countries, all predominantly Muslim, into the United States. It also had the effect or prohibiting, at least temporarily, legal resident aliens holding valid green cards from returning to the United States from abroad.
I do not intend tonight to comment on the substance, or wisdom of the Executive Order. For anyone who has paid attention to the policies or positions espoused by the President during the campaign or since, this Executive Order should come as no great shock. However, the manner in which it was done is troublesome.
There is an art, and a process, for issuing executive orders that has real value. The President’s refugee order was poorly worded, creating all sorts of ambiguities, and not clearly thought through. From the reports to date, this Order was not reviewed by most, if not all, of the relevant agencies. Homeland Security did not have an opportunity to comment; in particular, the Border and Customs Service that do the examination at the ports of entry were not given a chance to comment on the operational issues that might, and did, arise. The Department of Justice was not consulted concerning the legality or constitutionality of the Order; indeed, the acting Attorney general has instructed the United States’s District Attorneys to NOT defend the Order. The relevant members of Congress were not consulted, or briefed. The nations affected by the Order, as well as our allies, were not given any warning. In short, it was an operational and diplomatic disaster.
You may ask why, and I am glad you did. In my humble opinion, there is no one in the White House that has had any experience in drafting and coordinating a complex executive order such as this. Additionally, since only a handful of cabinet secretaries have been confirmed, and none of their operational deputies, who was available to assist the drafters in avoiding the confusion created by the Order.. Furthermore, the drivers pushing for such a hastily created Order are clearly the ideologues. President Trump is entitled to put forth his policies and positions- after all, he won the Electoral College and is our President. However, the ideological imperative must be tempered with good government. The desire to immediately fulfill campaign promises should not override the absolute necessity to do it right, whatever “it” is (to borrow a phrase from Bill Clinton). I sincerely hope the President, and his close advisers, will take to heart the mess created by this hastily promulgated Executive Order and take the time to do it right. As all our wise mentors have told us, “If it is worth doing, it is worth doing right.”