The Trump administration’s first attempt at implementing complex policy via executive order has been blowing up on them since it was signed on Friday. As Benjamin Wittes put it at Lawfare, the immigration ban targeting seven Muslim-dominated countries was “malevolence tempered by incompetence,” and it was met by massive protests, several legal setbacks, denunciation by most major religious movements (yes, including evangelicals), practically unanimous condemnation by Democrats along with a fair number of Republicans (including members of Congress), and a partial (so far) retreat by the administration.
So why is the new administration botching things so badly? Perhaps it’s because they’re trying to do policy from the White House, and that’s usually a recipe for disaster.
Wittes explains that this is apparently a White House operation in full: “NBC is reporting that the document was not reviewed by DHS, the Justice Department, the State Department, or the Department of Defense, and that National Security Council lawyers were prevented from evaluating it. Moreover, the New York Times writes that Customs and Border Protection and U.S. Citizen and Immigration Services, the agencies tasked with carrying out the policy, were only given a briefing call while Trump was actually signing the order itself. Yesterday, the Department of Justice gave a “no comment” when asked whether the Office of Legal Counsel had reviewed Trump’s executive orders-including the order at hand. (OLC normally reviews every executive order.)”
We’ve seen this before.
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Presidents or their staff decide to work around executive branch departments and agencies, and the results are generally awful. That was the case with the Iran-Contra affair during Ronald Reagan’s second term, when National Security Council staff tried making and executing policy and produced a scandal that crippled the administration.
The entire Watergate saga began when the FBI stymied Nixon’s efforts to increase domestic surveillance and to disrupt domestic opposition. Nixon then decided to do it anyway out of the White House, and hired the men who eventually became known as the “plumbers” to do things such as, say, break in to the office of an opponent’s psychiatrist to dig up dirt on him. (They weren’t pros at that, either).
Presidents (and White House staff) are often tempted to do things themselves because with expertise comes bureaucratic procedure, which slows things down. All administrations arrive with bold plans to execute swift changes. But shortcuts are dangerous.
They also are tempted to do things themselves because executive branch agencies are likely to push back against presidential priorities. But that is a way for the president to learn about the legitimate opposition of established groups — opposition the president needs to know about before he or she acts.
It’s not that presidents should always give in to opposition; it’s just that without fully understanding who objects (and how and how strongly), presidents can’t understand the risks of action and make informed decisions when to give in, when to compromise and when to fight.
Even if Trump had used the proper executive branch departments and agencies in formulating his policy, it’s likely the result would have sparked opposition. But the administration could have built alliances, too, and avoided some unnecessary battles.
Did Trump really want to pick a fight with veterans (and active duty military) upset because Iraqis who had worked with U.S. forces during the war were being abandoned? Would proper procedures have picked up on the strong opposition of religious organizations?
At the very least, bringing in the agencies might have produced executive action which was easier to implement and which would hold up better in court. Even if it sacrificed a little speed and, maybe, some portions of the original order which didn’t survive anyway.
If Trump doesn’t fix this tendency to ignore the executive branch — and it’s almost certainly going to require significant personnel changes for that to happen — expect more fiascos.