Four federal judges issue orders blocking parts of Trump’s executive order on immigration - The Washington Post

Four federal judges issue orders blocking parts of Trump’s executive order on immigration - The Washington Post
Opinion  by Orin Kerr January 29   (Volokh Conspiracy)

President Trump issued an executive order late Friday afternoon that, as the New York Times summarizes, “suspended entry of all refugees to the United States for 120 days, barred Syrian refugees indefinitely, and blocked entry into the United States for 90 days for citizens of seven predominantly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.” There has been a lot of action on the order in the courts today, and the disputes may be the first serious test of how the Trump Administration will deal with checks and balances.

Apparently, the usual agencies were kept out of the loop in the drafting of the order. On Fox News, Rudy Giuliani has taken credit for assembling a group of people who he claims drafted it. Giuliani states that Trump wanted a “Muslim ban” and that he needed a way to do it legally. According to Giuliani, his team decided to focus on countries rather than religion to give it “a factual basis” in terrorist threats, “not a religious basis.”

Benjamin Wittes rips into the order in a long post titled, Malevolence Tempered by Incompetence: Trump’s Horrifying Executive Order on Refugees and Visas. The whole thing is worth reading, but here’s an excerpt:


Is this document a reasonable security measure? There are many areas in which security policy affects innocent lives but within which we do not presumptively say that the fact that some group of people faces disproportionate burdens renders that policy illegitimate. But if an entire religious grouping finds itself irrationally excluded from the country for no discernible security benefit following a lengthy campaign that overtly promised precisely such discrimination and exactly this sort of exclusion, if the relevant security agencies are excluded from the policy process, and if the question is then solemnly propounded whether the reasonable pursuit of security is the purpose, I think we ought to exercise one of the sovereign prerogatives of philosophers—that of laughter.

So yes, the order is malevolent. But here’s the thing: Many of these malevolent objectives were certainly achievable within the president’s lawful authority.