|Marion Davies and William Haines in King Vidor's Show People (1928).|
Conservative Trumposceptics are having a hard time processing it. On the one hand, because it's Trump, they've given themselves permission to see one aspect or another of how bad the decree was, its terrible drafting, its incompetent execution, even some of its hideous consequences; but on the other hand, the court decision is an example of dread JUDICIAL ACTIVISM, or a violation of the sacred constitutional principle that judicial review applies only to the actions of Democrats, and thus ipso facto bad in its own right. So how is a true conservative to respond to a dilemma like that? What would Cato the Censor do?
Jonah Goldberg on NPR offered some dizzying footwork trying to manage the problem, which I may get to after the transcript comes up, but the funniest thing of the morning is a piece by Benjamin Wittes of Lawfare, which Trump thought, embarrassingly enough, was on his side. The piece acknowledged that
The Ninth Circuit is correct to leave the TRO in place, in my view, for the simple reason that there is no cause to plunge the country into turmoil again while the courts address the merits of these matters over the next few weeks.but complained that it misses the point—
This case is about two big questions, only one of which the panel’s per curiam today even mentions.—and lacks seriousness:
its blithe dismissal of the government’s claims of national security necessity on pages 26-27—a matter on which the per curiam spends only one sentence and one brief footnote.
That was posted Thursday night at 9:18, and by morning President Donald J. Trump had heard about it, presumably from Morning Joe.
He clearly hadn't actually read a word of it, and comically welcomed it as a vindication:
LAWFARE: "Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute." A disgraceful decision!— Donald J. Trump (@realDonaldTrump) February 10, 2017
Wittes, instead of mocking him, was huffy in response:
You decide whether the POTUS is quoting me in context. Here's the article. For the record, I support the decision: https://t.co/MN3DUZDbXm https://t.co/FLagCBkAWr— Benjamin Wittes (@benjaminwittes) February 10, 2017
You don't have to be a scientist to see that Trump is not quoting in context, but it's a stretch to say Wittes "supports" the decision. It's more accurate to say that he thinks the decision is wrong on the legal merits, because the Constitution
gives him a lot of authority to do a lot of not-nice stuff to refugees and visa holdersbut right anyway, because of
the incompetent malevolence with which this order was promulgated.The president can legally do whatever he wants, but if he's a bad person the courts can legally stop him. That's at a kind of Trumpian intellectual level. "Bad hombres are issuing executive orders! VERY DANGEROUS!"
Wittes is completely wrong on whether the appeals court had any reason to mention 8 U.S. Code §1182 on inadmissible aliens and the president's powers of not-niceness (as Armando was pointing out), by the way: the court was not asked to decide that question, but the question of whether the Seattle temporary restraining order should be kept in place. The only really relevant issues are whether the people of Washington and Minnesota and any other states signing on were being harmed by the executive order, as they clearly were from the testimony of Washington AG Ferguson, and whether the the TRO was causing any harm in its own right, as the federal attorney was totally unable to show. There was no reason to overturn the TRO regardless of whether the executive order is legally sound or not.
(I think, "for the record", that the order is not sound; the statute in question doesn't give the president authority to ban people on the sole grounds that they come from a particular country —you'd have to show for each individual some other reason than their passport for thinking they might be a terrorist and deny them a visa. I'm sure it can't be lawful to take away an already issued visa simply because they are Yemeni or Iranian citizens.)
In that respect, Wittes, Scarborough, and Trump are all wrong together. Still, if somebody accused me of incompetent malevolence, I'd hesitate to brag about how they agreed with me.