As anyone might have predicted, a coterie of federal judges quickly entered into the controversy in their belief that nothing important can transpire in the United States absent judicial approval. It is stunning to realize that a single federal judge (out of roughly 700 federal district court judges) can issue a nationwide ruling that blocks the executive branch from acting in a core area of national security—though, admittedly, this is not the first time something like this has happened. By now it should be expected that any controversial issue is bound to wind up in front of federal judges before long. The intervention of the west-coast judges is partly an expression of raw politics driven by a desire to stick it to the president, and, more profoundly, it is partly an expression of a view strongly held in some legal quarters that there are no areas of American life, including those involving war, peace, and national security, that are beyond the purview of judicial scrutiny. It is thus pointless to make the argument before these judges that some presidential decisions are outside the scope of judicial review. They don’t believe that, and since they get to make the call they are bound to call it in their favor.
Thus the president should withdraw the order before the courts have a chance to rule on it. He is going to lose anyway, and a negative decision will tie his hands and the hands of his successors in any future effort to control admissions into the United States. Right now the president is being hurt by the rushed implementation of the order, with horror stories of people with lawful visas being blocked from entry into the country. The horror stories are being conflated in the press with the lawful elements of the order in such a way as to undermine the legitimacy of the entire order. A pause or withdrawal of the order would give the president and the Department of Justice an opportunity to learn some lessons from this controversy that could be applied if and when the order is reinstated down the road.