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Recap of Recent Posts on Just Security (Feb. 4-Feb. 10)

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I. Explainers on the “Muslim Ban” Executive Order and Its Aftermath

II. The”Muslim Ban” Executive Order: Contempt and Disobedience

III. Norms Watch

IV. Detention: Executive Order on Guantanamo

V. The Yemen Raid 

VI. Cyber Warfare: Tallin 2.0

VII. The National Security Council 

VIII. The Law of War: Targeting Killing and War Crimes

IX. Supreme Court Confirmation Hearing

X. Sexual Violence in Military Operations

XI. International Agreements: Iran Nuclear Deal and Paris Climate Deal

XII. Trump and Countering Violent Extremism

XIII. Michael Flynn’s Russia Connections

 

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DOJ files copy of SSCI torture report with district court

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Last month I wrote about DOJ’s efforts to have Judge Lambert reconsider his order that the government must retain a copy of the Senate Select Committee on Intelligence’s torture report, and deposit a copy of the Report with the court’s information security officer (CISO).  Judge Lamberth denied that motion, and today DOJ filed a notice with the court, informing the judge that, on Monday, February 6, it did indeed file a copy of the Report with the CISO (that is to say, it presumably is not appealing the judge’s order).  Accordingly, now the Archivist has a copy of the Report, as does the district court (the latter for possible use in the Nashiri habeas case; the former for presumptive declassification and disclosure in twelve years).

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Questions for Neil Gorsuch’s Confirmation Hearing

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Here’s a list of questions I hope will be asked of Judge Neil Gorsuch, the President’s nominee to fill the vacant Supreme Court seat, at his Senate confirmation hearing. Most of these questions are related to security, individual rights, executive authority and requirements that the President serve without conflicts of interest. That these are necessary questions raises a larger question about whether, to paraphrase Benjamin Franklin, we will keep the Constitutional republic our Founders entrusted to us, as the President’s first weeks in power raise serious doubts about whether he intends to honor the law in all of these areas. The hearings come at a provident time and provide a much-needed opportunity to have a vigorous debate on Presidential power, made more meaningful by the fact that a Justice Gorsuch will likely join a Court that will make historic decisions on Executive authority.

  1. Is it inappropriate for the President to demean and attempt to subvert the authority of judges who rule against him? (Credit for this question goes to Steve Vladeck who suggested this in the wake of the President’s reaction to Judge Robart’s stay of the Executive Order on travel). Are you troubled that the President has pre-emptively blamed federal judges for terrorist attacks because they have ruled against him?
  2. There are reports that federal officials are refusing to comply with federal court orders staying the President’s executive order on immigration and travel. Is it permissible for the President or any Executive Branch employee to refuse to comply with an order from a federal court? If not, what should the Supreme Court do if called on to decide whether the President or the Executive Branch must comply with the Court order, assuming that the Supreme Court has upheld or declined to rule on the substance of the lower court ruling? If so, what is the legal basis for allowing the President or other executive branch officer to defy the courts? Would not this place the President above the law and destroy Article III Constitutional limits on Executive power?
  3. Millions of Americans exercised their First Amendment freedom of speech and assembly by participating in protests on the day after President Trump was inaugurated. Tens of thousands have protested since. Under what circumstances, if any, may the President limit the exercise of these First Amendment rights? Under what circumstances, if any, may state or local governments limit the exercise of these First Amendment rights? Do you agree that neither the President nor state or local governments may impose such restrictions on First Amendment rights that would effectively eliminate those rights or restrict them so severely as to significantly diminish the sought impact of the speech—for example, by relegating the location of permissible protests to undesirable places with low public visibility or capacity for few participants, or by restricting the time within which those rights can be exercised?
  4. Do you believe that the First Amendment could be construed to protect the media or members of the public from government words or actions, including words or actions from the President, that generate hostility or violence so great as to interfere with First Amendment rights?
  5. Do you agree with the Supreme Court’s decision in Citizens United v. FEC and will you commit to upholding that decision? If not, would you overturn the decision? If you would uphold Citizens’ United, and in your answers to questions about media and individual First Amendment rights you supported limits in those rights, how do you justify imposing limits on the rights of media and individuals to speak out while large and wealthy corporations have unlimited speech rights under Citizens United? Doesn’t this combination bias electoral politics in the favor of wealthy organizations and against individuals and the media?
  6. Is it unconstitutional for the President or any part of the U.S. government to require Muslim U.S. citizens and/or Muslim legal residents as a class to register or otherwise identify their religion with the government for recording? If not, under what legal authority and what circumstances would this be constitutional?
  7. Is it unconstitutional for the President or any part of the U.S. government to hold in detention Muslim U.S. citizens and/or Muslim legal residents solely on the basis religious affiliation (that is to say, without any evidence of criminal activity planned or committed by the detainee)? If not, under what legal authority and what circumstances would such detention be constitutional?
  8. Is the Supreme Court decision in Korematsu v. United States still good law and valid precedent for upholding legal detention? If your answer is yes, are you not troubled that the internment of Japanese Americans upheld in Korematsu is widely viewed (including by the dissenting Justices in Korematsu) as a shameful, racist episode in U.S. history that violated our commitment to human and civil rights and that the decision is considered by many as one of the worst in Supreme Court history?
  9. Do you agree with the Supreme Court decision in Obergefell v. Hodges that there is a fundamental right to same sex marriage and will you commit to upholding that decision? If not, would you overturn Obergefell?
  10. The Oxford Dictionary definition of the word “emolument” includes “a salary, fee, or profit.” Would this definition apply to the word emolument for purposes of interpreting the Emoluments Clause in the Constitution? If not, why not, and what would that word mean for purposes of applying the Clause?
  11. Do you agree that the purpose of the Emolument Clause is to prevent the President from receiving financial incentives from foreign countries that could bias the President toward those countries and against the interests of the United States or its citizens? Given that the President’s business holdings potentially could result in millions of dollars of profit from foreign countries, isn’t it clear that his refusal to divest the business or place it in a blind trust violates the Emolument Clause? If not, why not? If accepting small gifts violates the Clause, how can generation of millions of dollars comply with the Clause? Are you not concerned that nations with interests adverse to the US and with great wealth could provide President Trump with millions of dollars of business and thereby attempt to influence his decisions?
  12. If the purpose of the Emoluments Clause is to ensure that the President is not biased by receipt of incentives from foreign countries, doesn’t any U.S. citizen have standing to sue for violation of the Act? Put differently, isn’t a violation of the Clause automatically an injury to all U.S. citizens because the nation would no longer have a president free from bias or foreign influence? Aren’t the dangers of a president biased towards foreign interests so grave that universal standing for U.S. citizens is necessary under the Emoluments Clause? Is not this bias against U.S. interests in favor of foreign interests particularly acute in the case of President Trump given the staggering amount of profit that he can and likely will receive from foreign states? For example, isn’t the very purpose of the Clause to prevent things like a president opening or operating a hotel and receiving millions of dollars from countries with interests adverse to the U.S., such as Russia and China?
  13. InClinton v. Jones the Supreme Court ruled that the President is not immune from civil suits for acts done before taking office and unrelated to the office. Do you agree with that ruling and will you commit to voting to uphold it? If not, will you overturn it?
  14. Does the President or the federal government have the power to require state and local law enforcement and police to enforce federal laws or regulations on immigration? If so, what is the legal basis for this power? Wouldn’t this violate the 10th Amendment’s reservation of rights to states?
  15. Can the President or the federal government require state and local governments to enforce federal immigration laws or regulations on immigration as a condition for receiving federal funding or grants (other than funding that would go to the enforcement itself)? If so, what is the legal basis for this power? Wouldn’t this violate the 10th Amendment’s reservation of rights to states?
  16. Does an immigration law or policy which explicitly establishes preferential treatment on the basis of religion violate the First Amendment’s Establishment Clause? If not, why not?
  17. Is an immigration law or policy which denies visa holders the right to be in the United States in contravention of their visas subject to the due process clause of the Fourteenth Amendment? In other words, must any such restrictions or deprivations of current visa rights require due process?
  18. Recognizing that ultimate determination of this question would depend on the facts of a given case, do you believe that it is possible for an immigration law or policy that has a disparate impact in terms of the religion of those excluded to violate the Establishment Clause of the First Amendment? For example, would an immigration law that established an unconditional ban on Israeli citizens from coming to the U.S. violate the Establishment Clause because a very high percentage of those excluded are Jewish?
  19. The President recently suggested on Twitter that federal funding be withheld from the University of California at Berkeley following the University’s decision to cancel a talk by right-wing speaker Milo Yiannopoulos due to violent protests that occurred outside the campus venue where he was slated to speak. Is it legally permissible for the President or the Federal government to withhold funding that has been granted from a University, or any federal recipient of funding, for actions taken by the University that are not dependent on or related to the funding? If so, what is the legal authority for this, and under what circumstances would withholding the funding be permissible. What limits does the law impose on this authority to withhold funding? In the case of state and local governmental entities, would not this withholding of federal funds violate the 10th Amendment?
  20. Does the President have the legal authority to take action or enact policies which eliminate or reduce statutory immigration rights, or those established by treaties adopted by the U.S. in a manner that establishes such treaties as U.S. law, without congressional approval?
  21. In Hamdan v. Rumsfeld, the Court held that Common Article IIIof the Geneva Conventions applied to the U.S. Will you commit to uphold this ruling from Hamdan? If not, why not?
  22. The United States has been using military force in its conflict against the Islamic State since August of 2014. Congress has not passed legislation specifically authorizing this use of force. Does the President have the power to continue to use force against the Islamic State without Congressional approval or authorization? If your answer is yes, what is the legal basis for the President’s use of force against the Islamic State?
  23. The previous administration took the position that the 2001 Authorization to Use Military Force (AUMF) served as the legal basis for using force against the Islamic State. The 2001 AUMF authorized force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” The Islamic State did not originate until years later. Does the 2001 AUMF authorize force against the Islamic State? If so, how can a statute directed at participants in the September 11 attacks and supporters authorize use of force against a terrorist group that did not exist until after the attacks and had neither responsibility for them or relationship with those who conducted the attacks and their supporters?
  24. It is generally accepted that Article II of the Constitution provides the President with the authority to use force without congressional authorization so long as the use of force is limited and the President complies with the requirements of the War Powers Act. In terms of the limitations for this authority, what are the categories you would consider in determining whether a use of force is limited enough to fall within the President’s Article II authority, and for each category what would be the outer limit beyond which the President would require congressional approval or authorization? Continue Reading »
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Norms Watch: Tracking the Erosion of Democratic Traditions (Feb. 3-10)

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CHECKS AND BALANCES

Threatening judicial independence and American constitutional principles, Trump attacked a federal court judge this week in an unprecedented move which generated critique from Democrats, Republicans, and even Trump’s own nominee for the Supreme Court.

Trump Attacks Judge on Twitter

After Judge James Robart, a federal judge in Seattle, blocked Trump’s immigration ban nationwide on Friday, Trump launched an attack on Judge Robart the next day, referring to him as a “so-called judge” and declaring his decision to be “ridiculous.” Trump wasn’t finished blasting the judge, and on Sunday stated that Judge Robart would be to blame “if anything bad happens.” In what became a whirlwind weekend, the Justice Department filed a notice on Saturday night that it would formally appeal the order and on Sunday morning, the U.S. Court of Appeals for the Ninth Circuit denied the Justice Department’s request to immediately restore the ban.

Meanwhile, reports of immigration officials resisting or moving slowly to implement court orders regarding the ban show that Trump officials have acted in contempt of court orders, explains Just Security’s Faiza Patel. Also writing in Just Security, Ambassador (ret.) Keith Harper  argues that “allowing defiance of court orders weakens the very fabric of our legal system and undermines a key attribute of good governance – the rule of law.” Jon Finer wrote that while in a democracy it is normal and can be desirable for institutions to promote different agendas, “what isn’t normal is for arguably the most powerful institution to seek not to win arguments against the others, but rather to vanquish them.” Not only carrying risks to judicial independence and constitutional principles, Trump’s inflammatory rhetoric could also incite violence or threats directed toward judges, writes Susan Hennessey for Lawfare.

During NBC’s “Meet the Press” on Sunday, Vice President Mike Pence said the “president of the United States has every right to criticize the other two branches of government.” On Monday, Spicer defended Trump, saying he “utilized that power in a very legal, constitutional manner to ensure that we are safe. Our people are safe, our country are safe, our institutions are safe. And it’s somewhat sad to see a judge go rogue like this.” Within the Republican party, Trump’s attacks sparked criticism from Sen. Ben Sasse (R-Neb.), and Senate Majority Leader Mitch McConnell (R-KY.) said it was “best to avoid criticizing judges individually.” Other Republicans, however, are standing behind Trump and not coming to Robart’s defense.

In a unanimous decision delivered on Thursday night, a panel of three federal judges refused to reinstate Trump’s travel ban. Trump’s order is now most likely headed for the Supreme Court on appeal. His response is below. Does it look familiar?

Trump’s Nominee for Supreme Court: A Rubber Stamp?  Continue Reading »

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Targeted Killing Under Trump: Law, Policy, and Legal Risk

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A recent Presidential Memorandum directs the Secretary of Defense to develop a preliminary plan to defeat ISIS. The plan “shall include . . . recommended changes to any United States rules of engagement and other United States policy restrictions that exceed the requirements of international law.” As Luke Hartig recently explained, these Obama-era policy restrictions—particularly those in the well-known 2013 Presidential Policy Guidance (PPG)—are supported by a range of moral, political, and military considerations. So, too, are various nonpublic military rules of engagement (ROEs). Accordingly, the Secretary of Defense may conclude that more permissive targeting policies, though tactically advantageous, would prove strategically self-defeating, and that therefore most or all of the Obama-era rules ought to be retained.

Earlier this week, Yemeni authorities appeared to withdraw their government’s consent to U.S. ground operations after a number of civilians were killed during a raid by U.S. Special Forces. Yemen’s foreign minister later clarified that his government had not suspended cooperation with the United States, but insisted that “any counterterrorism operations carried out in Yemen should continue to be in consultation with Yemeni authorities and have precautionary measures to prevent civilian casualties.” Going forward, other partners—most notably Iraq—may condition their consent to U.S. military operations on strict targeting policies that protect their civilian population. For obvious reasons, both legal and practical, such considerations ought to inform any “plan” to defeat ISIS.

In this post, however, I wish to suggest that the premise of the Order is mistaken, or at least exaggerated. In my view, U.S. targeting policies, including the PPG and various ROEs, do not clearly exceed the requirements of international law or exclusively reflect non-legal considerations of morality, politics, and military strategy. Instead, I propose that these targeting policies are best understood, at least in part, as efforts to mitigate legal risk.

Every lawyer advising a client must ask herself at least two questions. First, in my professional judgment, what is my client required to do, permitted to do, and prohibited from doing? Second, what if my professional judgment is wrong, or others (courts, regulators, partners, competitors) disagree? In other words, what legal risk does this course of action bring with it, are those legal risks justified, and how might they be minimized?

Thus, even if the U.S. government believes that current targeting policies exceed the requirements of international law, it should consider the risk that future Administrations, other States, international bodies, and other institutions will disagree. Before modifying or abandoning current targeting policies, the current Administration should carefully weigh the legal risks of doing so, in addition to moral, political, and strategic considerations.

Relatedly, where the U.S. interpretation of international law differs from the interpretation of our coalition partners, often the more restrictive interpretation will, as a practical matter, prevail. Presumably, our coalition partners will not assist U.S. military operations, let alone participate in joint operations, that violate their interpretation of international law. As Ryan Goodman and others have explained, such cooperation would entail prohibitive legal risks for them.

In this post, I will focus on the targeting rules contained in the 2013 Presidential Policy Guidance (PPG) and reaffirmed in the 2016 Legal and Policy Frameworks (LPF). These rules apply outside what the PPG calls “areas of active hostilities,” such as Afghanistan, Iraq, and Syria. I hope to discuss the rules applicable inside these areas in a future post. However, since Al Qaeda, ISIS, and their affiliates operate both inside and outside these areas, the PPG and LPF warrant separate discussion.  Continue Reading »

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The Other Bombshell in Flynn Story: Contacts during the campaign and Russian hacking

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News stories and headlines overnight are focused on the revelation that Michael Flynn discussed sanctions with Russia’s Ambassador in December phone calls, which flatly contradicts what Vice President Pence, White House Spokesman Sean Spicer, and Flynn himself had previously publicly asserted. The story, broken by Greg Miller, Adam Entous and Ellen Nakashima at the Washington Post, contains a potentially even more explosive revelation: Russian contacts with Donald Trump’s inner circle during the presidential campaign, an allegation that the Trump administration has also previously categorically denied.

I. Implications
Why would the pre-election contacts be the more significant story? The reason is, as many commentators suggest, if such contact related to Russia’s cyber campaign to help elect Trump and destabilize a potential Clinton presidency, it could raise more serious allegations even including treason. Compare that implication to the potential legal violation of Flynn’s speaking with the Russian Ambassador after the election. As Steve Vladeck wrote at Just Security, the law prohibiting private citizens’ engaging in diplomacy—the Logan Act—may not apply to an incoming president-elect’s transition team.

Sometimes the cover up is worse than the crime. On all these counts, administration and former campaign associates may need to consider the False Statements Crime, that is, if they spoke directly with investigators who have been handling these cases. (On the status of current investigations, I recommend Susan Hennessey’s discussion over at Lawfare).

II. Denials
Since the election, the Trump team, including the President himself, have categorically denied any contact with Russian officials during the campaign. Continue Reading »

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The Early Edition: February 10, 2017

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Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

TRUMP ADMINISTRATION FOREIGN POLICY

National security adviser Michael Flynn – inappropriately and potentially illegally – privately discussed US sanctions against Russia with the Russian ambassador to the US in the month before President Trump took office – contrary to public assertions by Trump officials, Greg Miller, Adam Entous and Ellen Nakashima report at the Washington Post, citing current and former US officials.

Flynn relayed the unambiguous and highly inappropriate message to the Russian ambassador that US-Russia relations would change under President Trump from the adversarial attitude of the Obama administration, officials said, Matthew Rosenberg and Matt Apuzzo reporting at the New York Times.

The US will honor the “One China” policy, President Trump told his Chinese counterpart in the leaders’ first phone call yesterday, walking back on his earlier expressions of doubt over the longstanding understanding, Mark Landler and Michael Forsythe report at the New York Times.

CIA Director Mike Pompeo and Turkey’s Prime Minister Binali Yildirim agreed on closer cooperation against terrorism and organized crime when they met in Turkey today, the AP reports.

Trump denounced a 2010 treaty capping US and Russian deployment of nuclear warheads during his first call with Russian leader Vladimir Putin in January, Jonathan Landay and David Rohde report at Reuters.

Trump intends to use his meeting with Japanese Prime Minister Shinzo Abe today to reassure the US’s Asia-Pacific allies that he values America’s alliances in the region despite raising doubts with his earlier comments, write Carol E. Lee and Alastair Gale at the Wall Street Journal.

Prime Minister Abe will most likely want to underscore Defense Secretary James Mattis’ description of Japan as “a model of cost sharing and burden sharing” on defense during his recent visit to Japan and his reassurance that the US would stand by the mutual defense treaty and retain its troops on Okinawa and elsewhere when he meets Trump today, suggests Motoko Rich at the New York Times.

Trump and Canadian Prime Minister Justin Trudeau will meet in Washington Monday for the first time, Trudeau’s office said. Paul Vieira reports at the Wall Street Journal.

A strategy on the Israel-Palestine conflict involving enlisting Arab nations like Saudi Arabia and Egypt to break years of deadlock is being developed by the Trump administration, write Peter Baker and Mark Landler at the New York Times.

Trump’s son-in-law Jared Kushner has become the main point of contact for foreign leaders, ministers and ambassadors, helping to lay the groundwork for deals, despite having no traditional foreign policy experience, his “back-channel” communications with Mexico revealing him as “almost a shadow secretary of state, operating outside the boundaries of the State Department or National Security Council,” write Philip Rucker, Ashley Parker and Joshua Partlow at the Washington Post.

“We must never pursue cooperation with Russia at the expense of our fundamental interests.” Eight Republican Senators urged President Trump to take a harder line on Russia in a letter yesterday, the Hill’s Joe Uchill reports.

Thinking Russia has much to offer the US is a miscalculation on Trump’s part not just of Russian power and interests but also the value of what America might have to give up in return, writes The Economist.

US primacy and Russian imperialism are not the same thing. Sohrab Ahmari explains what Trump doesn’t get about NATO and President Putin at the Wall Street Journal.

The United States is the UK’s “gravest national security threat since the Second World War,” President Trump seeking to bring about a Russian-American axis that would weaken NATO, destroy the EU and dominate a Europe reduced to “politically dysfunctional national fragments” – the very spectacle discussed by EU leaders in Malta last week – warns Joseph O’Neill at the Guardian.

The MUSLIM BAN

President Trump’s travel ban was unanimously rejected by a federal appeals panel yesterday, Adam Liptak reports at the New York Times.

“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” the President tweeted following the ruling. Continue Reading »

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4 Quick Thoughts on the 9th Circuit Order re: the Immigration EO

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Marty already linked to the Ninth Circuit order affirming the temporary restraining order prohibiting the enforcement of Trump’s immigration Executive Order (EO).  Importantly, this is not a decision on the merits; it is merely a decision about whether or not to keep the stay in place.  (The case will now proceed to the merits in the district court.)  But the decision nonetheless provides insight into how at least 3 Ninth Circuit Court judges  are thinking about the issues.  While I’m sure others will have more to say in the coming days, here are four quick key take-aways:

First, the President’s power with respect to immigration is subject to substantial deference, but it is not unreviewable. The President cannot take steps that violate constitutional rights and protections, and he cannot shield executive action from all judicial review. This is not surprising.  When the executive shows disregard for the courts, the judiciary tends to react.  See, e.g., Boumediene v. Bush (cited repeatedly in the Ninth Circuit’s ruling).

Second, the Ninth Circuit emphasized that the due process rights covers all persons in the United States, including aliens.  It thus rejected the government’s fall-back suggestion that the EO be narrowed to exclude from its coverage legal permanent residents and “previously admitted aliens who are temporarily abroad or wish to travel and return to the United States in the future.”   As the Ninth Circuit noted, unlawfully present aliens, non-immigrant visa holders who have temporarily departed, and U.S. citizens and lawfully present aliens that seek to bring in spouses or family members all have at least some due process rights.  In the courts word’s, the EO, even if narrowed, is “not likely to succeed on its due process arguments in its appeal.”

Third, the court noted, without deciding, strong concern that the Order was intended to disfavor Muslims, thus potentially violating the Establishment and Equal Protection Clauses.  As the court noted, “[t]he States’ claims raise serious allegations and present significant constitutional questions.”

Fourth, the court expressed deep skepticism of the government’s claimed national security justification.  As the court noted, the government has presented “no evidence that any alien from any of the countries named in the Order has .perpetrated a terrorist attack in the United States.”   On the national security issues, it’s worth taking a look at this declaration – filed by 10 top national security officials spanning multiple administrations – as well.

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Trump and the Immigration Bureaucracy: Should We Expect Civil Servants to Dissent?

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President Trump’s Executive Order (EO) barring entry from seven Muslim majority countries and suspending the refugee resettlement program has sparked public outcry, caused upheaval and suffering at the nation’s airports, and prompted fast-moving litigation. It also has shed stark light on some critical questions about the relationship between the President and the bureaucracy. When the President has articulated a set of policy priorities, how can he ensure that they permeate the bureaucracy? The absence of strong political control and supervision can produce arbitrary and even chaotic government. But what happens if the arbitrariness comes from the top? If the President’s priorities are actually illegal or immoral? Should we depend on or unleash the valiant civil servant to check presidential abuses of power?

The President depends on the bureaucracy to implement his objectives, whether embodied in an EO or some other form of guidance. In immigration law, that bureaucracy is vast, from the State Department’s consular officials spread throughout the world, to Customs and Border Protection (CBP) agents dispersed at ports of entry around the country, to Immigration and Customs Enforcement (ICE) agents in field offices throughout the interior. What is more, as recent events make clear, lots of private actors, such as the airlines, also form part of the implementation chain.

In the best of times, consistency in adjudication and enforcement proves elusive. Ordinarily, the immigration bureaucracy’s work is framed by regulations, field manuals, and other forms of guidance continually updated by the different agencies involved and keyed to the Immigration and Nationality Act. But on occasion, the President or his Cabinet officials decide to declare priorities at the highest levels—think not just Trump’s executive order, but also President Obama’s initiatives to provide enforcement relief to certain unauthorized immigrants (Deferred Action for Childhood Arrivals (DACA) for immigrants brought to the U.S. as children and a counterpart action for parents of citizens and lawful permanent residents (LPRs)). When this happens, one need not believe in any notion of a “unitary executive” to see the importance of the civil service abiding by the direction that comes from the White House and other politically accountable officials. This hardy expectation of compliance is entirely consistent with robust civil service protections from retaliation for disagreement, dissent, or even disobedience, and should never serve as a justification for a purge of discordant bureaucrats by political overseers. But to cabin and systematize the vast powers of the Executive Branch, our elected officials must have control and respect.

Instead of beginning with how this should play out in the context of the EO, let’s start with the Obama White House. As Adam Cox and I have written, a main purpose of Obama’s relief initiatives was to control line level agents, to get them to adhere to the administration’s enforcement priorities. Together with two different Secretaries of Homeland Security, the administration created application processes for certain unauthorized non-citizens to seek relief from deportation, structured with clear eligibility criteria and strong mechanisms of supervision. But line agents initially resisted this attempt at political control, much as they had resisted or stymied the prior regime of informal guidance. Before United States v. Texas, in which the Supreme Court divided 4-4 over whether Obama’s relief for the parents of citizens and LPRs was lawful, there was Crane v. Napolitano—a lawsuit filed by ICE agents who claimed that DACA forced them to violate their oaths to the Constitution. Their theory of the case implied that line agents should be free to engage in their own constitutional interpretation, second guessing the determinations of their superiors. As Dave Martin wrote at the time, this is no way to run an Executive Branch, especially when the bureaucracy is large and dispersed and exercises coercive law enforcement functions.

But this bureaucratic dispersal also means that the White House and high-level political officials must supervise and direct the bureaucracy on how to implement administration policies. In this sense, the roll out of the Trump EO represents the polar opposite of the Obama initiatives. By all accounts, it appears that the Trump White House failed to enlist the relevant agency heads, much less their knowledgeable civil service personnel, when formulating the order—bypassing inter-agency consultation that could have highlighted operational concerns. The initial chaos at the airports in the days after the order’s release, and the administration’s repeated change of position on whether the EO applied to green card holders, suggest it had no real insight or plan for how to provide implementation guidance. The airport turmoil was only exacerbated by the nature of customs and border officials’ jobs. Officers at ports of entry have considerable discretion when determining whether to allow a non-citizen into the country. They know it, and they operate with that frame of mind every day. The administration’s failure to communicate the meaning of the new order created uneven enforcement. The sweeping reach of the order further amounted to a shock to the system, opening the door to overbearing law enforcement and excessive hardships for families and others.

Amazingly enough, the absence of inter-agency consultation and communication with the bureaucracy might actually become relevant in the litigation, as courts seem willing to question the President’s national security judgment in light of the haphazard formulation and implementation of the order. His disorganization and poor planning is an indication that national security may not have been his motive at all. Continue Reading »

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