While much of Washington is currently atwitter (and a-Twitter, of course) over the growing possibility that in the near future, one or more top White House advisors may be shown the door (centering, so far, around Mike Flynn, Sean Spicer, and Reince Priebus), I personally think Trump should consider cutting his losses in a different way. Palace intrigue is always fun to speculate about, of course, but aside from personalities, President Donald Trump should really consider just cutting his losses on the whole idea of a "temporary ban" on immigration. He should, in short, declare victory and move on.
For those of you laughing loudly at that previous sentence, allow me to explain. Yes, Trump has now lost twice in the courts. This means the chances he'll lose again -- no matter what next legal step he takes -- are quite high. He could appeal the decision to the entire Ninth Circuit Court of Appeals. He could appeal the decision directly to the Supreme Court. He could continue fighting at the District Court level. All of these strategies are likely to fail, however. The full Ninth Circuit is not likely to overturn a decision that, so far, has been made by two Democratically-appointed judges and two Republican-appointed judges. That's not likely to happen, and would just waste time. Pushing it to the Supreme Court might get a 4-4 split decision, which would just uphold last week's decision against Trump. The District Court judge obviously thinks Trump is going to lose on the merits of the case (hence the initial temporary restraining order in the first place), so Trump's not likely to find judicial joy there, either.
Trump could try an end-run, by issuing a new (and more limited) executive order. This would make all the previous judicial action meaningless, and restart the clock. But there's no reason after the clock restarts that Trump will have any better luck -- another judge (or the same one) could just as easily issue another restraining order blocking implementation. If Trump had two orders halted, it's unlikely a third would work either. Part of the case against Trump is his motives for the action (which are unconstitutional, according to Trump's legal foes), meaning that rewording the order might not help Trump's case at all.
So how does Trump make lemonade out of this legal lemon? By ignoring the whole "temporary ban" part of his promise, and moving straight to the "extreme vetting" part, that's how. Trump has always -- even from his first unveiling of what was then billed as a "Muslim ban" -- consistently said he wants a "pause" in allowing entry. This pause was designed to give Trump time to institute new "extreme vetting" rules, pretty much from the beginning. So why waste so much time and energy fighting for what was always supposed to be a temporary ban?
If the issue continues to get wrapped up in the court system, that means it is going to move pretty slowly. Months will go by before any court decision on the merits of the case is made, and then that will be appealed, and appealed again, and will eventually wind up at the Supreme Court. All of this takes time, even on an expedited schedule. By the time a final decision is reached, the temporary period laid out in the executive order will long be past, in other words.
Instead, Trump could pivot to the extreme vetting and just ignore the ban altogether. He could tell his supporters that those nasty, liberal judges (two appointed by Republican presidents, but whatever) were stopping him from doing what he wanted, but it wouldn't make any difference because the extreme vetting was now ready to go. That's an argument his supporters would undoubtedly buy. The ultimate goal of Trump's plan was always the extreme vetting anyway, so who would care if the temporary ban idea had to go by the wayside?
Donald Trump has never, to the best of my knowledge, defined what extreme vetting is even supposed to mean. That means virtually any changes in the vetting process could qualify, in Trump's eyes (and his supporters'). Politically, this is an easy case to make, which is where the whole "declare victory and move on" part comes in.
People attempting to visit the United States encounter various degrees of hassle before they are allowed in. The easiest of these processes is for a tourist from a country that we trust. There is no process for these visitors other than talking to an Immigration agent at the point of entry. No visa is required at all.
Countries we don't trust so much have various other vetting for people wanting to travel here. A visa is required, even for a tourism trip. That means tourists must contact the United States embassy in their country, and provide paperwork with their visa request. If the visa is denied, they can't come to America. Travel to America for business purposes requires a similar process (although different paperwork). So does a student visa to attend school here, or a fiancée visa to get married to an American.
For people not traveling for casual purposes but rather to immigrate to America, the process is much harder to get through, and a whole lot more paperwork is required. Immigrants of any type are screened and examined and interviewed extensively, before residency is allowed. But one of the highest screening categories is for refugees. The process to enter America as a refugee takes two years and many levels of vetting already. Most people (and a whole lot of Trump supporters) aren't aware of this fact, but that doesn't change it.
Because Trump's never defined extreme vetting, all he'll need to do is add his own tweaks to a vetting system that is already pretty robust. Have someone in the White House do a deep dive into the Immigration procedures for refugees, and perhaps for immigrants of any type. Changes could even be made to other categories as well (some have even suggested requiring Europeans to get tourist visas). Trump could revamp whatever he wanted, and it probably wouldn't change what prospective entrants have to go through all that much. Maybe there'll be another page of questions to answer on the immigration forms (there are already multiple pages of questions, including things such as: "Were you a member of the Nazi party back in World War II?"). Maybe the interviews will be longer or more in-depth (or have additional specific questions). None of that would really change the process for the person applying all that much -- because it is already such a stringent process to get through. They already have to answer a whole bunch of questions, both on paper and in person. A few more won't change the experience much for them, in other words. The additional questions likely won't change the outcome a whole lot, either, in terms of who is allowed in and who isn't (as mentioned, the vetting process is already pretty darn robust), although it might significantly slow it down for the countries Trump is currently targeting.
Politically, however, it could be rolled out as a complete and total victory for Trump. Trump could brag that he had "outsmarted" the court systems by skipping from the temporary ban to his stated ultimate goal. He could make all sorts of unverifiable statements about how massively he had improved the vetting process. He would quite likely brag about how he had come up with "the toughest, most extreme vetting in all of history." Since he conveniently never defined what that was supposed to mean in the first place, who could successfully contradict him when he claims to have achieved his undefined goal? Specific criteria used for immigration (if the Trump administration oversteps constitutional bounds on any of their new questions or procedures, in other words) could still get challenged in court, but that has always been the case.
Donald Trump's Muslim ban promise was always just a political ploy. It allowed him to whip up anti-Muslim feelings at his political rallies (which did indeed happen, just as planned). When Trump got elected, he instructed Rudy Giuliani to find a way to make his promise legal. Giuliani -- and everyone else involved in the effort to draft Trump's original executive order -- failed spectacularly at the whole "make it legal" thing. The more Trump tries to fix this fiasco, the more he is likely to do nothing but achieve more and more pushback from the judiciary. So why bother?
The second part of this political ploy was always a lot more achievable than the first. Trump promised a Muslim ban, not fully understanding that any such effort was doomed to fail (because of that pesky Constitution). No president is able to just ban all Muslims from coming in to America. Period. But who even knows what extreme vetting means? Unlike a Muslim ban (which is, constitutionality aside, a pretty easy concept to grasp), extreme vetting means whatever Trump defines it to mean.
Don't get me wrong -- I am extremely reluctant to offer political advice to this particular president, on any subject. However, as time goes by, I think this path out of the legal maze Trump now finds himself in is going to become more and more obvious, even to Trump and his advisors. Declare victory and move on is always a tempting tactic -- and in this particular case, given how the ban was only supposed to ever be temporary and how the ultimate goal has never been defined in any way, I think eventually Trump will be forced into just dropping the whole ban idea and leapfrogging to the (easier) second half of his campaign promise. He can score his political points, the people affected will have to answer fifteen or twenty more questions (or whatever) on what is already a giant list of questions, and we can all move on to the next political fight. Again, this all seems obvious to me, which is why I'm pointing it out today. Call it a prediction, rather than political advice.
-- Chris Weigant
Cross-posted at The Huffington Post
Follow Chris on Twitter: @ChrisWeigant