Sophia Brill on Lawfare has a good test for the courts concerning the new version of the travel ban, the changes to which some commentators have suggested is a bit nonsensical:
Given all this, the government should be put to the test of its arguments: The officials most directly responsible for this new order should have to swear under oath that they had no instructions as to which countries their review ultimately needed to find were “inadequate” and that they never had any other type of instruction as to particular countries that needed to end up on an exclusion list. It won’t be enough for the Justice Department—through the Office of the Solicitor General or, if the challenge is heard first by lower courts, through DOJ’s Civil Division—to make these types of representations. After all, these components of the Justice Department do not engage in counterterrorism policymaking. The most they will say is that the executive branch is entitled to complete deference and that these internal decision-making processes should be afforded a presumption of regularity. Indeed, there will probably be a good deal of indignant pearl-clutching if and when the challengers to the order suggest that its underlying findings are pretextual.
Yet the history of these travel bans has proceeded in anything but a “regular” fashion. If the administration wants the benefit of deference to its purported national security decisions, then it should be willing to have the people responsible for those decisions swear under oath that their assessments resulted from a legitimate policy process that was free from any predetermined outcomes. The highest-level officials most likely to be able to speak to these issues authoritatively are White House Chief of Staff John Kelly (who was secretary of homeland security until the end of July); Elaine Duke, acting secretary of homeland security; and Tom Bossert, the president’s homeland security adviser. Others could include Secretary of State Rex Tillerson, Director of National Intelligence Dan Coats and Dana Boente, the acting Assistant Attorney General for National Security.
Given Trump’s modus operandi of always looking to appearances and never the important content, we can tentatively conclude that this executive order, an explicit promise to Trump’s base, will be revealed as just another attempt to get around the Court’s finding of the basic illegality of the order.
And the sad part is that if Trump Administration had followed standard procedure, the executive order might have been successfully implemented, regardless of the protests of the liberal and civil libertarians.
But the basic incompetency of Trump as a leader betrayed his own goals and base.
