Scarborough: Miller going under the bus for immigration EO?

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Welcome to the White House, Stephen Miller. Rule #1 for presidential advisers: The boss is never wrong. Rule #2: When the boss is wrong …. start updating your resumé. Joe Scarborough and Mika Brzezinski spent the weekend meeting with Trump administration officials, who left the distinct impression that the botched rollout of the executive order on the 90-day pause on national from seven high-risk countries was entirely Miller’s fault for being on a “power trip”:

.@JoeNBC and @morningmika met with President Trump yesterday. Here’s their reporting. https://t.co/3p9XGwUQrw

— Morning Joe (@Morning_Joe) January 30, 2017

“Why did Stephen Miller fight so hard to put out this order on Friday without talking to any of the other agencies?” Scarborough asked Monday during MSNBC’s “Morning Joe,” referring to the president’s immigration ban.

“It was Stephen Miller sitting in the White House saying, ‘We’re not going to go to the other agencies. We’re not going to talk to the lawyers. We’re going to do this all alone,’ ” Scarborough continued.

“You’ve got a very young person in the White House on a power trip thinking that you can just write executive orders and tell all of your Cabinet agencies to go to hell.”

Somehow this scenario seems ideally compartmentalized after an avalanche of criticism over the last forty-eight hours. It may be true, but if that’s the case, then the administration would have immediately corrected course and acknowledged the overreach on the most controversial aspects of the EO. If Scarborough’s entirely correct, that still leaves the problem of having a White House that’s not quite ready to deal with acute issues, at least internally. And even if Scarborough’s not entirely correct, it still leaves Miller with some knives in his back from those sources.

The EO itself isn’t so much the issue as the rush to implement it, and the choices made in its application. NRO’s Andrew McCarthy, a former federal prosecutor who could hardly be called soft on fighting radical Islamist terror, writes at length to explain why the EO itself is legal, but that the strategy in implementing it was badly misguided [emphases in original]:

Don’t misunderstand: As I pointed out yesterday, the president has the legal authority to apply the EO to LPRs under the sweeping power granted by Section 1182(f). The question is whether doing so is just and strategically sound

Let’s say the Trump administration had announced its new policy and explained that it would be implemented beginning one week from the date of the announcement. The ACLU & Co. would still have stormed immediately into court . . . but they wouldn’t have done so while representing highly sympathetic clients who were being detained at the airport amid swarms of protesters, news media, Democratic politicians making welcome-to-Nazi-Germany speeches, and so on.

The ACLU lawyers would have been trying to conjure up doom-and-gloom rhetorically but without flesh-and-blood horror stories. The government lawyers would have been citing their strong precedents. The judges would have been hesitant, even if they thought the policy was wrong, to take action under circumstances in which the government was on solid legal footing, the courts’ jurisdiction was questionable, and no one had suffered real harm. Meantime, the chance that the policy would result in sympathetic victims would have diminished to near zero: A week’s delay would have convinced most aliens not to travel here and risk detention or exclusion; and any aliens who came would have been doing so in knowing defiance of the EO, not in innocent reliance on the prior issuance of a visa.

Instead, the Trump administration must now litigate on the defensive. … Good policy requires good implementation. Bad implementation begets victims with legitimate grievances and heightened judicial scrutiny — the kind of bad facts that tend to make bad law. And bad law makes it much harder to develop good policy. It can become a cycle of self-defeat.

Competence matters, in other words. Power trip or not, Miller alone or not, there clearly wasn’t enough preparation and thought put into the implementation of this EO, which makes it a defensible policy badly executed, at least at first. Given that this is a 90-day suspension rather than a permanent policy, any damage from the policy itself will be temporary and recoverable. Displays of incompetence erode an administration’s standing with the public, which is tougher to overcome. Just ask George W. Bush about FEMA and Hurricane Katrina, even though that was arguably more the fault of Louisiana.

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