Can Trump Win by Losing?
There’s no question the Ninth Circuit Court’s ruling Thursday night upholding the stay against Donald Trump’s lawful order on travel was entirely political and had nothing to do with Rule of Law. But Donald Trump didn’t help his own legal case — either by promising a Muslim ban on the campaign trail (which the three-judge panel almost surely took into consideration) or by taunting the judiciary over the issue. That’s not to say he was wrong on the merits of his criticism, but judges are human too and reacted accordingly.
Furthermore, as David French writes, “Critically, the Trump administration issued a significant executive order (and then defended it in court) without laying any real factual foundation for its finding. Next, the administration enforced the order in a haphazard and unnecessarily cruel manner, initially including even green-card holders in its scope. By slamming the door (at least temporarily) in their faces, it created a crisis atmosphere that not only ramped up the political stakes, it told the court that the administration didn’t exactly know how to interpret its own order. This invites judicial meddling.”
The judicial meddling was absolutely egregious. The court essentially opposed Trump’s order because the judges don’t like it, and in the process they usurped presidential authority on matters of national security. They used possible harm to individuals to make a ruling about an entire class of people, which makes a hash out of the Supreme Court’s doctrine on legal standing.
Trump could have executed this better, and the courts absolutely got it wrong. But it’s important to realize that this was also strategically calculated to play out in one of two ways: Either Trump got his way with the order (he didn’t), or his base is (rightly) fired up about an activist judiciary just in time for Supreme Court confirmation hearings. Trump wins either way. And along the way, Trump successfully diverted media attention to a very temporary travel moratorium — i.e., not the most critical issue. (Unfortunately, he diverted his own attention from tax or health care reform to do that.) The charitable view is that this is an example of one of Trump’s deal-making trademarks, “managed chaos,” in which he keeps his opponents off balance, distracted and unaware of the right hook that is, ultimately, going to win the match. Let’s hope he takes a step back, crafts a better vetting order, and does just that.