In his 20 years in Washington, Benjamin Johnson, executive director of the American Immigration Lawyers Association, says he never has seen any presidential executive order put in place with as little planning as President Donald Trump’s order banning people from seven predominantly Muslim countries from entering the United States.
“It seems to be as much of a media event for the Trump administration as it is a thought-out policy,” said Johnson, whose group represents more than 14,000 attorneys and law professors across the United States.
“This,” he said, “is a circus.”
As CNN reported, senior homeland security staffers saw details of the order only hours before its language was finalized, in lieu of the usual weeks of back and forth with federal agencies.
“Nobody has any idea what is going on,” one senior homeland security source told NBC.
That contrasts starkly with how the White House described it.
“It’s working out very nicely,” Trump told reporters a day after the signing. “You see it at the airports. You see it all over. It’s working out very nicely, and we’re going to have a very, very strict ban, and we’re going to have extreme vetting, which we should have had in this country for many years.”
— ABC News Politics (@ABCPolitics) January 28, 2017
“Very nicely” seemed to be an alternative-fact take on the chaotic scene at airports and public parks across the country this weekend, where tens of thousands of protesters demonstrated as Department of Homeland Security officials moved to immediately enforce rules whose language many in the agency reportedly struggled to understand.
The order clearly prohibits all immigration from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days and halts the resettlement of all refugees, regardless of nationality, for 120 days. But its hasty execution led to disagreement about a basic question: Did the rule apply to people holding U.S. green cards, which give them permanent residency to live and work in the U.S.?
Homeland security officials believed it did not, but the administration pushed back against that interpretation, insisting it applies to all citizens of the seven targeted nations – only to reverse course Sunday.
At times, it seemed only the president himself knew the rules.
When lawyers representing an Iraqi interpreter, who had worked with the U.S. military for years and was detained by government officials following Trump’s order, asked whom they should talk to about getting their client freed, they were told, “Call Mr. Trump.”
Some travelers were prohibited from boarding flights to the United States from foreign airports. Other were detained when they arrived at U.S. airports or immediately ordered to be sent back to their home countries.
Johnson contrasted the rollout of Trump’s immigration order with the Deferred Action for Childhood Arrivals program, an initiative by President Barack Obama that relied on extensive planning. That 2012 executive order granted temporary legal residency to undocumented immigrants who arrived in the country as children.
Noting that Trump has yet to appoint directors for Immigration and Customs Enforcement or U.S. Citizenship and Immigration Services, he added: “We’ve got acting directors, and those officers don’t really have a strong relationship with, or a connection to, the White House and are left wondering, ‘What do they mean by this?’ ”
“I’ve been saying that this is as ill-conceived as it is wrong,” he added. “There’s been a lot of chaos.”
Elements of executive orders from presidents often are intended to go into effect immediately, Johnson said.
When Obama issued an executive order earlier this month ending the “wet foot, dry foot” policy, which allowed any Cuban national who makes it to American soil to become a legal resident, implementation began as soon as the ink was dry. However, the administration had been working with the Cuban government for months on the details of the order, and the White House had coordinated with immigration officials to ensure that the rule change didn’t affect the residency or citizenship process of Cubans immigrants already admitted to the country under the previous policy.
The scope of Trump’s order made it difficult to execute.
“What is shocking,” Johnson said, “is there was no preplanning into the immediate implementation of this plan. And what’s also shocking is the enormous scope of what will take place immediately … the ban of the seven countries … and also the cessation of refugee processing.”
The results drew the attention of two Republican lawmakers who long have been critical of Trump’s national security stances. Sens. John McCain of Arizona and Lindsey Graham of South Carolina slammed the president’s process for carrying out this executive order and expressed grave concern that it could backfire.
“It is clear from the confusion at our airports across the nation that President Trump’s executive order was not properly vetted,” the statement reads. “We are particularly concerned by reports that this order went into effect with little to no consultation with the Departments of State, Defense, Justice, and Homeland Security.”
“Ultimately, we fear this executive order will become a self-inflicted wound in the fight against terrorism,” it continues. “At this very moment, American troops are fighting side-by-side with our Iraqi partners to defeat ISIL (the Islamic State militant group). But this executive order bans Iraqi pilots from coming to military bases in Arizona to fight our common enemies.
“Our most important allies in the fight against ISIL are the vast majority of Muslims who reject its apocalyptic ideology of hatred. This executive order sends a signal, intended or not, that America does not want Muslims coming into our country. That is why we fear this executive order may do more to help terrorist recruitment than improve our security.”
Shortly after the statement’s release, Trump fired back against McCain and Graham in a pair of tweets.
A federal judge issued a temporary stay on deportations under the order Saturday evening – soon joined by similar rulings from courts in Massachusetts, Virginia and Washington state. But the Department of Homeland Security has continued detentions at some airports.
In Johnson’s assessment, the already capricious and haphazard nature of America’s immigration system makes it an especially troubling arena for the new administration to be fracturing institutional norms. Constitutional protections, he said, do not always apply.
For example, the U.S. Supreme Court ruled in 2013 that police officers need to obtain a warrant before searching a suspect’s smartphone because warrantless searches violate the person’s Fourth Amendment protections against unreasonable searches and seizures. However, those protections do not apply at border crossings, which include domestic airports.
In the days since Trump’s immigration order went into effect, even getting detainees speedy and consistent access to legal representation has been difficult.
“People are really at their most vulnerable at that point of entry,” Johnson said. “There’s been a complete lockdown.”