[Special] The Machinations Behind Trump's Immigration Ban

Trump's immigration ban rolled out as one would expect from his administration, half-formed, chaotic, controversial, and unsustainable. I will leave it to the words of professionals to explain, although I note this post is particularly long because it is important for context.


For some (extensive) background on what transpired and what we know, here is Politico's report(1):

Senior staffers on the House Judiciary Committee helped Donald Trump's top aides draft the executive order curbing immigration from seven Muslim-majority nations, but the Republican committee chairman and party leadership were not informed, according to multiple sources involved in the process.

The news of their involvement helps unlock the mystery of whether the White House consulted Capitol Hill about the executive order, one of many questions raised in the days after it was unveiled on Friday. It confirms that the small group of staffers were among the only people on Capitol Hill who knew of the looming controversial policy.

Kathryn Rexrode, the House Judiciary Committee’s communications director, declined to comment about the aides’ work. A Judiciary Committee aide said Judiciary Committee Chairman Bob Goodlatte (R-Va.) was not "consulted by the administration on the executive order."

"Like other congressional committees, some staff of the House Judiciary Committee were permitted to offer their policy expertise to the Trump transition team about immigration law," a House Judiciary Committee aide said in a statement. "However, the Trump Administration is responsible for the final policy decisions contained in the executive order and its subsequent roll-out and implementation.”

* * *

It’s extremely rare for administration officials to circumvent Republican leadership and work directly with congressional committee aides. But the House Judiciary Committee has some of the most experienced staffers when it comes to immigration policy.

GOP leaders received no advance warning or briefings from the White House or Judiciary staff on what the executive order would do or how it would be implemented — briefings they still had not received as of Sunday night. Leaders including Speaker Paul Ryan (R-Wis.) and Majority Leader Mitch McConnell (R-Ky.) only saw the final language when reporters received it Friday night, according to multiple Hill sources.

Rather, Republicans on the Hill spent the entire weekend scrambling to find out what was going on, who was involved and how it was that they were caught so flat-footed.

"Their coordination with the Hill was terrible," said one senior GOP source on the Hill, who seemed flabbergasted that congressional Republicans didn’t receive talking points from the White House on the executive order until late Saturday night, about 24 hours after President Donald Trump signed it. “We didn't see the final language until it was actually out.”

For analysis, we turn first to the Washington Post:(2)

“The idea that House Judiciary Committee staffers would sign a nondisclosure agreement precluding them from informing Goodlatte is wholly out of bounds,” said Andrew Wright, a former associate counsel to former president Barack Obama who now specializes in separation of powers at the Savannah Law School. “If the story is true, Sally Yates won’t have the only office cleaned out by the start of business this morning."

Beyond internal staff struggles, this news could add fuel to a smoldering fire: that Trump is leaving out Capitol Hill Republicans in his deliberations. He's not just circumventing them but could possibly be undermining them as well.

By just about all accounts, congressional Republicans were completely caught off guard by the executive order when Trump signed it Friday and were just as confused as the rest of the world about what it actually said.

As they spent the weekend scrambling to figure it out, Democratic members of Congress had no trouble defining it as an unconstitutional religious test. “Make no mistake — this is a Muslim ban,” Sen. Kamala D. Harris (D-Calif.) said in a statement less than an hour after Trump had signed it.

(Although the courts will be the final arbiter on that, the wording of the order itself helped them make that case: It said there would be exceptions for persecuted religious minorities from those majority-Muslim nations, such as Christians. Trump's previous rhetoric on Muslim bans isn't helping.)

Then we allow Talking Points Memo to bring it home:(3)

There are two levels on which to understand this. One is simple workplace common sense. If your employee or subordinate does something behind your back that ends up embarrassing you or catching you off guard, that is a major breach. If you agree to do work for someone else and promise that someone else not to tell your boss, your boss is not going to be happy. Now, you may say there are plenty of more important things going on right now than a members of Congress getting insulted or having his feelings hurt. And you'd be right. But if there's one thing members of Congress excel at it's guarding their institutional and official privileges. How does Goodlatte trust these staffers again knowing they went behind his back?

I guarantee you: career staffers who are hearing about this are gobsmacked. It's unheard of.

The second level is more complicated. I'm not sure this rises to the level of a formal separation of powers issue. But the idea of the White House coopting congressional staff behind the backs of members of Congress certainly runs roughshod over the overarching concept of two coequal and separate branches of government.

(1) Politico: Hill Staffers Secretly Worked on Trump's Immigration Order by Rachael Bade, Jake Sherman and Josh Dawsey (January 30, 2017)
(2) Washington Post: Did Donald Trump just set his relationship with Hill Republicans on fire? by Amber Phillips  (January 31, 2017)

(3) This is The Big Story by Josh Marshall (January 31, 2017)