The smartest way to draft an executive order regarding entry restrictions


President Trump is going to issue a new executive order regarding entry restrictions after the Ninth Circuit Court of Appeals upheld a temporary restraining order on his original temporary ban on entry from seven Muslim countries. There are many ways to redraft his EO, but I am going to focus on two of the smartest strategies.

Option I: Focus on Objective Based Screening Criteria

President Trump's original order was attacked as being anti-Muslim because it targeted seven Muslim nations (while leaving travel untouched from many more Muslim countries, but never mind that for the moment.)

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Instead of targeting specific countries, President Trump should simply announce new vetting procedures:

  1. A) Require a detailed background check from the country of origin, to demonstrate that the applicant is not a national security threat to the United States.
  2. B) Require the background information to come from validly constituted foreign governments which aren't state sponsors of terrorism or hostile to the United States.
What this pair of requirements would do is make sure that any person admitted to the United States be essentially vouched for by their country of origin. But these requirements would not be satisfied in the case of countries that have no governments (like Yemen, Somalia, or Syria) or in the case of countries with hostile governments, like Iran.

In effect, President Trump would be getting the same result without targeting Muslim countries.

Option II: The vague strategy

The other strategy that President Trump could employ is what I call the "vague strategy". In this scenario his executive order can be as long or as short as he likes, but basically boil down to something like this:

  1. A) As of this date anyone applying for visas or wishing to enter the United States on a visa must be thoroughly vetted to ensure that he or she is not a national security threat to the United States.
And what does thoroughly vetted mean? The Trump administration will be as vague as possible and put nothing down in writing besides boilerplate like "balancing and weighing of factors" (who can be against balancing and weighing of factors, right?). But verbally, through the chain of command, Trump will order the DHS not to let people in from countries where ISIS or other radical Islamists are present except under exceptional circumstances. Since there will be no paper trail to follow with specific requirements, this kind of order will be harder to challenge.

If I had to bet money I will bet that President Trump will do a variant of Option II, the vague strategy. It will still be challenged in court, of course, by leftist states like Washington who are "worried" about all the Somali and Yemenese Ph.D. students they might be missing out on at the University of Washington, and who will claim the order, however worded, has a "disparate" impact on Muslims.

What the courts will ultimately decide to do is hard to say. I personally believe the courts are result-oriented--they first start with the result they want, open borders, and then write an opinion to justify it, as seen by the wholly unconstitutional opinion given by the Ninth Circuit last week. In which case it doesn't matter what kind of order Trump issues.

But I think, all things being equal, the vague kind of executive order I described is the way Trump will go and is more likely to survive scrutiny. If it doesn't, Trump is either going to have to battle the courts directly for control of national security policy, or accept the fact that we are an open borders nation and that he is a President who has been unconstitutionally cuckolded by a judiciary that demands to be on top.

[originally in AT]



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