Maybe It's Small Ball after All

After Mr. Trump won the election but before he took office, I suggested that he govern playing "small ball," analogizing to the successful baseball practice of grinding out scores rather than swinging for the fences.  Others disagreed.  And I guessed that temperamentally, Trump was ill suited to such a strategy, which has proved to be the case.  But with Trump's first major policy initiative on immigration going down to defeat (at least for the time being), swinging for the fences may be out – something Trump himself seems to realize.

It is hard to paint President Trump's immigration initiative as a success thus far, with the Wall Street Journal calling it a debacle.  That doesn't mean that Trump is wrong on the merits, or that the courts that have frustrated the policy have acted properly.  Indeed, it is entirely the opposite.  But his administration's failure to prepare the ground for the immigration rollout led directly to its defeat and has even more broadly compromised Trump's own power, and potentially that of future executives, against judicial activism.

As the Journal opined:

President Trump's immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy.

The Ninth Circuit, in ruling against Trump, bowdlerized the law in any number of ways, from allowing the case to proceed regardless of the lack of standing by the litigants (state governors) to effectively granting due process rights to non-citizens who have yet even to enter the country to second-guessing the Justice Department on the facts as they relate to the active threat of terrorism from the countries subject to the order.  If the Ninth Circuit's order stands, it creates a judicial precedent – not only with regard to the immigration issue, but to include invasion of the president's constitutional prerogatives to act in the interests of national security.

Unfortunately, Trump has few good options at the moment to right the boat.  Appealing the case to the Supreme Court would be worse than the political equivalent of flipping a coin on both the future of the immigration initiative and potentially the success of Trump's presidency.  With the court still stuck at eight members, four leaning right, four leaning left, the best Trump could realistically hope for is a deadlock, it being an extreme long shot that a liberal justice would flip.  On the other hand, it is entirely plausible that Justice Kennedy would vote with the leftist bloc, handing Trump a devastating defeat.

Even Trump is unlikely to swing at that pitch, though as of this writing, supposedly all options are open. He seems to be leaning toward redrafting the immigration order and vetting it in a more conventional manner.

What would small ball have looked like on immigration?  First, Trump could have asked his core supporters to give him a few months to prepare the groundwork.  Americans are not a particularly patient people, but it is hard to believe that Trump's base would have begrudged him that, and the rest of the nation was not waiting with bated breath.  This would have permitted him to install Jeff Sessions at Justice, allow Sessions to staff the agency effectively, and firm up the legal case for the immigration order.  Then Trump could have gotten Neil Gorsuch on the Supreme Court, not just nominated.  Finally, Trump could have laid out a more complete moral and legal rationale for the policy.  In the sense of classical civilization, as Victor Davis Hanson notes, this is "making haste deliberately," which sounds like ancient Greek for small ball.  

This would not have short-circuited howls of outrage from the left, nor would it have prevented a judicial strategy like what we see today.  However, the administration would have been in a much stronger position.  At a minimum, Trump would not have had to engage in a pointless skirmish with an acting attorney general, firing her and creating a lefty hero for no gain.  The lawyers arguing the government's case would have been more committed and better prepared.  And while none of this could guarantee that Kennedy would not swing left were the case to get to the Supreme Court, it would make it less likely because of an additional conservative voice in conference (Gorsuch); a better prepared legal argument; and perhaps, with a more deliberate and organized rollout, fewer angry tweets against the judiciary by Trump.

As noted, Trump seems to be coming around.  While not ruling out an appeal to the Supreme Court, Trump said his administration has "a lot of other options, including just filing a brand new order."

This is not the only issue on which Trump seems to have reconsidered taking wild swings.  On China, Trump's backed away from provoking the Asian giant on the issue of Taiwan, tremendously important to the communist regime but not vital to American interests.  This doesn't mean that Trump has changed his view on China, or that he will not try to more effectively leverage American military and economic power than did the feckless Obama administration.  Rather, he will likely do it in a more deliberate and incremental manner.

On Mexico, this seems to be true as well, with his son-in-law Jared Kushner softening Trump's public pronouncements regarding the southern border wall, with old-fashioned quiet diplomacy.   

Likewise, Trump appears to have slightly backed off his pledge to move the U.S. embassy in Israel to Jerusalem, recently telling an Israeli newspaper he was still "thinking about it," and "we'll see what happens."  Trump, like all recent American presidents, seems irresistibly drawn to the prospect of resolving the Israel-Palestinian Arab dispute.  I think this is ill advised, but if that's what Trump intends to do, then holding back the embassy move is a smart incremental play to pressure the Israelis later.

Playing small ball doesn't mean not winning big.  In fact it increases the odds of doing just that.  There is no reason why Trump cannot attack his full agenda in this fashion, including discombobulating the left.  A win is a win, and as any baseball aficionado can tell you, 1-0 victories are usually the real gems.

After Mr. Trump won the election but before he took office, I suggested that he govern playing "small ball," analogizing to the successful baseball practice of grinding out scores rather than swinging for the fences.  Others disagreed.  And I guessed that temperamentally, Trump was ill suited to such a strategy, which has proved to be the case.  But with Trump's first major policy initiative on immigration going down to defeat (at least for the time being), swinging for the fences may be out – something Trump himself seems to realize.

It is hard to paint President Trump's immigration initiative as a success thus far, with the Wall Street Journal calling it a debacle.  That doesn't mean that Trump is wrong on the merits, or that the courts that have frustrated the policy have acted properly.  Indeed, it is entirely the opposite.  But his administration's failure to prepare the ground for the immigration rollout led directly to its defeat and has even more broadly compromised Trump's own power, and potentially that of future executives, against judicial activism.

As the Journal opined:

President Trump's immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy.

The Ninth Circuit, in ruling against Trump, bowdlerized the law in any number of ways, from allowing the case to proceed regardless of the lack of standing by the litigants (state governors) to effectively granting due process rights to non-citizens who have yet even to enter the country to second-guessing the Justice Department on the facts as they relate to the active threat of terrorism from the countries subject to the order.  If the Ninth Circuit's order stands, it creates a judicial precedent – not only with regard to the immigration issue, but to include invasion of the president's constitutional prerogatives to act in the interests of national security.

Unfortunately, Trump has few good options at the moment to right the boat.  Appealing the case to the Supreme Court would be worse than the political equivalent of flipping a coin on both the future of the immigration initiative and potentially the success of Trump's presidency.  With the court still stuck at eight members, four leaning right, four leaning left, the best Trump could realistically hope for is a deadlock, it being an extreme long shot that a liberal justice would flip.  On the other hand, it is entirely plausible that Justice Kennedy would vote with the leftist bloc, handing Trump a devastating defeat.

Even Trump is unlikely to swing at that pitch, though as of this writing, supposedly all options are open. He seems to be leaning toward redrafting the immigration order and vetting it in a more conventional manner.

What would small ball have looked like on immigration?  First, Trump could have asked his core supporters to give him a few months to prepare the groundwork.  Americans are not a particularly patient people, but it is hard to believe that Trump's base would have begrudged him that, and the rest of the nation was not waiting with bated breath.  This would have permitted him to install Jeff Sessions at Justice, allow Sessions to staff the agency effectively, and firm up the legal case for the immigration order.  Then Trump could have gotten Neil Gorsuch on the Supreme Court, not just nominated.  Finally, Trump could have laid out a more complete moral and legal rationale for the policy.  In the sense of classical civilization, as Victor Davis Hanson notes, this is "making haste deliberately," which sounds like ancient Greek for small ball.  

This would not have short-circuited howls of outrage from the left, nor would it have prevented a judicial strategy like what we see today.  However, the administration would have been in a much stronger position.  At a minimum, Trump would not have had to engage in a pointless skirmish with an acting attorney general, firing her and creating a lefty hero for no gain.  The lawyers arguing the government's case would have been more committed and better prepared.  And while none of this could guarantee that Kennedy would not swing left were the case to get to the Supreme Court, it would make it less likely because of an additional conservative voice in conference (Gorsuch); a better prepared legal argument; and perhaps, with a more deliberate and organized rollout, fewer angry tweets against the judiciary by Trump.

As noted, Trump seems to be coming around.  While not ruling out an appeal to the Supreme Court, Trump said his administration has "a lot of other options, including just filing a brand new order."

This is not the only issue on which Trump seems to have reconsidered taking wild swings.  On China, Trump's backed away from provoking the Asian giant on the issue of Taiwan, tremendously important to the communist regime but not vital to American interests.  This doesn't mean that Trump has changed his view on China, or that he will not try to more effectively leverage American military and economic power than did the feckless Obama administration.  Rather, he will likely do it in a more deliberate and incremental manner.

On Mexico, this seems to be true as well, with his son-in-law Jared Kushner softening Trump's public pronouncements regarding the southern border wall, with old-fashioned quiet diplomacy.   

Likewise, Trump appears to have slightly backed off his pledge to move the U.S. embassy in Israel to Jerusalem, recently telling an Israeli newspaper he was still "thinking about it," and "we'll see what happens."  Trump, like all recent American presidents, seems irresistibly drawn to the prospect of resolving the Israel-Palestinian Arab dispute.  I think this is ill advised, but if that's what Trump intends to do, then holding back the embassy move is a smart incremental play to pressure the Israelis later.

Playing small ball doesn't mean not winning big.  In fact it increases the odds of doing just that.  There is no reason why Trump cannot attack his full agenda in this fashion, including discombobulating the left.  A win is a win, and as any baseball aficionado can tell you, 1-0 victories are usually the real gems.

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