https://en.wikipedia.org/wiki/Saturday_Night_Massacre
Maybe not the best precedent.
Clinton famously fired all 93 U.S. Attorneys when he took office.
As a recent Obama appointee as Deputy, Yates was running on fumes anyway. There was no way she was going to survive past the confirmation of Sessions (or whoever it winds up being). She just decided to go out with some political grandstanding, which I'm sure will help her find a new job.
The US Attorney thing under Clinton is totally different. Nobody made a peep when Trump dismissed the previous AG. It is understood that these political appointees will be replaced as a matter of course. This criticism is in response to him dismissing Yates after asking her to stay on board as acting AG, in response to her exercising her legal judgment.
In this specific example she made a highly public political act containing no professional content, naturally that results in firing.
On top of that, the AG has additional obligations as an attorney. An attorney must sign her name to every legal argument she makes to the court. She may not permit a non-attorney to override her legal judgment. Here, the AG did not hold a press release discussing the politics of immigration. She told her subordinates not to make legal arguments defending the order--arguments she would have had to sign her name to. It is absolutely an exercise of professional judgment, not policymaking.
Of course Trump can fire her for any reason. But the public is also entitled to draw reasonable inferences from those actions.
rayiner, I'm curious what you think about Dershowitz' argument that she should have resigned?
http://thehill.com/blogs/pundits-blog/the-administration/317...
But I think Dershowitz ignores crucial situational context. He says: "A responsible attorney general would seek to analyze these complex issues before jumping into the political fire with a blanket refusal to defend any part of the order." That's fine and good in theory, but this order was implemented over a weekend with apparently no vetting by the DOJ. It was almost certainly unconstitutional as applied in many situations. And Yates would have to send attorneys into courts to defend the order right now. She did not have the luxury of taking time to figure out what "parts of [the order] are legally defensible."
Remember, contemporaneously with firing Yates, the White House did a 180 on one of the key legal interpretations: that the order applied to green card holders. You do not go into court and advance a legal argument, and then tell the court sometime later "oh, now that we have had a chance to actually analyze these complex legal issues, we were wrong on A, B, and C." As a supervising lawyer, Yates could not tell her subordinates "defend the order for now, but we may have to walk some of this stuff back once we figure out what is actually legal."
Yates thought it would be better to go out with a bang than a whimper.
I'm sure the DNC will find her a nice comfy job after this.
She called out her role as different to explain why she doesn't agree with the OLC that it's legal.
My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted.
I mean the DHS and other involved departments were also not consulted, so the idea that the DOJ got to weigh in on the legality is pretty strange/implausble.
I assumed the latter. We'll soon see how the legality of the order plays out in the courts anyway.
https://www.nytimes.com/2017/01/27/opinion/trumps-immigratio...
Edit: Either way, my original blanket assumption that it had just not been looked at by the DOJ at all is clearly false as the OLC is a part of the DOJ.
#1 - The AG is THE person to defend the administration in court, and even argues personally on behalf of administrations in front of the Supreme Court. Her duty is to defend the Administration's position (even if she personally disagrees with it). As wikipedia puts it (abbreviated for space here): "The United States Attorney General (A.G.) .... is the chief law enforcement officer and chief lawyer of the United States government." But I suggest reading here for a very good overview: https://www.justice.gov/about
#1a (to highlight this specifically: AGs determine whether to prosecute, not whether to defend.
#2 - The courtroom is the place to determine if the order is legal or not. From what I understand, Congress can also override this.
#3 - There is no (publicly known) communication between the AAG and the President regarding her stance. From what I can tell, she contradicted his order without informing him. Note that he has no legal requirement to inform her, but she does to inform him (being that the President is the superior to an AG).
#4 - Presidents have the right to fire US Attorneys without any reason. And they use it often. Every President in recent memory has done so.
#5 - The order affected non-citizens who are outside the country. The law and legal cases tend to give wide latitude to the executive branch on actions outside the country.
Again, I say this regardless of whether or not I like the order. I will say this - at a minimum, he should have consulted with someone to minimize some of the issues that this order faces. That fact that he apparently did not even do that is astonishing.
That's not how Democracy works and Trump is quickly trying to change that and it is a terrible thing.
"To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not 'wise or just.' This is quite significant. I am not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis."
Source: https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
In the usual course, the DoJ would pre-vet an E.O. and concerns about wisdom and justice, and particularly, as regards the former, issues of the degree to which defending the E.O. would require the DoJ to take positions that the DoJ has taken or would otherwise take defending other executive actions, and the potential adverse precedent (for public and even specifically executive branch interests) that would be set were courts to accept arguments the DoJ would make defending the E.O. would be addressed, weighed, and resolved (possibly with changes to the E.O. and/or changes to strategy in other pending cases) before the E.O. was issued.
The lack of consultation within the Executive Branch that, among others in other contexts, Senators McCain and Graham (both Republicans) called out, prevented that from occurring in advance, which meant those considerations would have to be weighed after-the -fact. But still before any defense could be prudently mounted.
"Do you think the attorney general has a responsibility to say no to the president if he asks for something that's improper...?"
Ms Yates replied: "I believe the attorney general or the deputy attorney general has an obligation to follow the law and the constitution and to give their independent legal advice to the president."
She was confirmed 84-12 so it seems that they were happy with the response. I would also note that any lawyer who is tasked to defend you also has an obligation to inform the client of poor chance of success, in this case the AG not only thought the chance of success was poor but it was unconstitutional also.
In private, and when he tells you that you're to carry out his wishes- since you're serving at his pleasure, then you go and do your job or you resign.
If you picked a public fight with your boss in the middle of the scrum and then refused to do what he wanted when you were overruled- how long would you last?
Also- let's not forget that Office of Legal Council had already said that it's perfectly Constitutional and legal.
This shouldn't be surprising nor worrying. This is how hierarchical leadership works and it's fully expected that anyone under the President may be forced to do whatever the President wants. It's the entire reason there are 2 other branches of government.
Whether the order rises to that level I'm not sure. I think there are definitely some instances in how the order was applied that wouldn't have been defensible if pursued further. For example, I haven't heard a single cogent argument that it's legal to exclude permanent residents without individualized process.
A business might hire an attorney, but they generally listen when they say a policy has shaky legal ground, if any at all. The response isn't generally to fire the lawyer and find one that agrees.
For example (and this is speculation), I have doubts that the OLC signed off on excluding permanent residents without individualized process. The order does not, by its terms, apply to permanent residents. But that is how CBP interpreted it for three days, and the White House reversed that position only last night. The AG would have to go into court and defend CBP's interpretation, and I don't think it is defensible. Indeed, it's so indefensible that I think there is a decent chance individual CBP agents will be held personally liable for Constitutional violations once this all plays out.
Just because legal counsel says its legal does not mean it is legal, or that the AG "ignored its legality". Different attorneys will have different frameworks and theories on whether it will hold up in court.
-http://legal-dictionary.thefreedictionary.com/Attorney+Gener...
The President isn't a king, whose orders are to be followed regardless of the Constitution or prevailing law.
Both the President and the AG serve at the pleasure of the People of the United States, and Trump is about to find that out the hard way.
Trump has the support of roughly half of the country.
Regardless of how loud the opposition is, don't confuse their passion for widespread support.
What happens when his conservative base starts dwindling as he institutes more and more measures which run counter to both conscience and conservative principles?
Irrelevant. Trump was elected, he was appointed a couple of weeks ago, and he is in charge.
No one invented "support dwindles" comments when Obana's popularity was scraping rock bottom.
Furthermore, while Trump was in fact elected in a democratic election, the Attourney General was not. The Attourney General has no standing to deny a lawful order by the president.
Yes, they did. I mean, just googling "Obama support dwindles" falsifies that claim (even if a lot of the early hits are about Clinton in the last election); there's quite a lot from the right doing just what you claim no one did, foing back to at least 2010 in what I get on the first two pages of results.
Per the latest Gallup daily tracking, 51% disapprove, 43% approve, and the quickest President to majority disapproval in the history of the tracking poll.
I'm not buying it.
> I'm not buying it.
Facts remain facts regardless of whether they are convenient to your preferred team.
The polls were done state by state and showed Hillary with a substantial electoral college advantage over Trump.
These poll results weren't about reporting on the feelings of the electorate, they were about trying to influence them.
https://www.whitehouse.gov/the-press-office/2017/01/27/execu... and https://www.law.cornell.edu/uscode/text/8/chapter-12/subchap...
And I'll take a Law Professor over a reality TV star when it comes to protecting the Constitution and running the government while obeying the law.
This is a contradiction. If you'd rather enjoy the defeat of your enemies, you don't actually care about civil liberties.
This is what's actually wrong with America: the fact that politics has devolved into a simple team sport, where the only goal is to win and have the other team lose.
Edit: Also, back to, er, polite discourse, I don't believe the state of civil liberties has significantly changed in the past, what, 11 days. I know you won't accept that thanks to fake-news-ordered outrage, but it's true. So you mistake my non reaction to a non event for apathy, which it's not.
>any clear conviction that the law was unconstitutional
is the wrong way of going about it. I would think you'd want to be pretty darn sure that the actions you were carrying out were constitutional before doing them. That is, I'd much rather people not enforce a law that might be unconstitutional, but isn't, than enforce a law that is unconstitutional. Err on the side of caution.
Do you know of a credible legal argument that the president is not allowed to issue instructions to the Department of Homeland Security via executive order? Ms. Yates apparently does, but she doesn't wish to share. If there is such an argument, why would it apply to President Trump's EO tightening immigration enforcement but not President Obama's EOs loosening it?
There is nothing in Trump's EO that singles anyone out by religious affiliation or background. The EO uses a list of countries that the previous administration had already highlighted as high-risk. The EO imposes a temporary ban only, for the explicit purpose of reviewing the processes used to grant visas to nationals of those high-risk countries. I'm really not seeing anything blatantly improper or illegal here.
Where does the chief law enforcement officer's obligation to enforce the law as enacted by the people of the United States cave to his/her personal proclivities or opinions about that law? It is the duty of the AG to execute the laws as written. If we allow the AG to ignore the laws we set up based on matters of personal opinion, isn't that a large subversion of the democratic process?
Principled stands like this should truly be exceptional, and clearly and obviously justified. If you're getting into minutia about whether something may or may not be legal, we've set up a system of judges whose role is to make these decisions. In the meantime, it is the DoJ's duty to enforce the law.
Prosecutorial discretion refers specifically to prosecuting someone under the law. It does not apply to the government's own lawyers refusing to advocate for or defend the government's position in hearings about the very legality of the Orders issued -- this leaves the administration without fair representation and stands only to prolong the litigation process.
If Ms. Yates could not in good conscience fulfill the duties of her position, the appropriate course of action is resignation. If she refuses to take this course, it is the president's responsibility to relieve her and install someone who is willing to uphold the laws that the people of the United States have installed through their duly elected representatives and executives (including the president).
This is false. It has explicit exceptions for "religious minorities".
Wikipedia: "After the resumption of USRAP, refugee applications will be prioritized based on religion-based persecutions only in the case that the religion of the individual is a minority religion in that country."
That doesn't make his EO illegal, and doesn't contradict the commenters statement.
The exception for religious minorities is clear: they are targeted in genocidal acts.
Christians, Yazidis and others face acutely disproportionate and targeted violence because of their religion - so in this case, it's warranted.
The Yazidis in particular, faced outright genocide - ISIS came for them, killed the men, took the women and children into slavery, those that could flee, fled.
The are a persecuted minority group, and I don't think anyone would question the need there.
Governments around the world including the US make special arrangements for persecuted minority groups - I don't think anyone has a problem with this.
Yes, it does. The executive order "singles people out" based on their religion.
It doesn't matter what the motive is (and I think your take on the motive is naive, but that's beside the point).
My language was imprecise in that I was referring specifically to the orders limiting entry of foreign nationals, and also specifically referring to singling out specific religious affiliations rather than religious background as a general principle.
But yes, the order does also contain an instruction to prioritize refugees seeking asylum from generalized religious persecution, and states that the refugee's claim should only be prioritized if they are legitimately a religious minority (which seems more like an implicit implementation detail). That section of the order is completely unrelated to the travel ban on foreign nationals.
I appreciate the correction and I will attempt to keep the language precise moving forward.
One other note, it would be best to link to primary sources next time. The full text of the EO is available at https://www.whitehouse.gov/the-press-office/2017/01/27/execu....
WTF does religion-based persecution have to do with "legitimately [being] a religious minority"?
You are aware that people are persecuted for questioning doctrine of the religion that they nominally belong to? That people are persecuted for being gay on religious grounds, even if it's their own religion?
If you seriously believe what you wrote, you simply fell for the superficial literal meaning of the words. The actual, and quite obviously intentional, effect of banning entry from muslim-majority countries and then making exceptions based on belonging to a minority religion is discrimination based on religion.
Because it's an attempt to illegitimately get prioritized refugee status if they learn they can just claim to be religiously oppressed? Wouldn't even a basic vetting verify their claim of religious oppression before granting asylum based on it, and wouldn't a religious minority status be important to credibly claiming persecution? A "religious minority" is not necessarily non-Muslim; it could refer to a Shia Muslim in a predominantly Sunni area or vice-versa, or some type of fringe / modernist Islamic interpretation. The point is confirming that actual religious persecution is going on and not that someone found a shortcut.
America has historically given priority to immigrants that are victim to religion-based persecution. We are, after all, a nation founded by settlers seeking freedom from religious prosecution from a country in which they were the minority.
[0] http://www.yalelawjournal.org/note/executive-orders-in-court
The law passed by Congress in this case states that the immigration department is not allowed to discriminate based by country of origin. The Constitution also states that people are required to have due process before their rights are taken away. If the acting attorney general felt that the order conflicted with these two, as she clearly did, then it was the executive order that should get ignored.
Now I will agree that there is a political dimension to this, especially since the current nominee for Attorney General is going through confirmation hearings and her actions make sure that this will come up in those hearings. But the President could have consulted with Congress, and didn't. He could have gone through Homeland Security and didn't. He could have waited until his nominee of choice was confirmed and consulted them, but didn't. So there is alot of this that is backlash against the lack of due process and the attempt to run the government like a corporation, which is against the law itself.
"Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."
Yes, I agree. It's the judiciary's role to interpret the law and decide whether there is a conflict. It is true that the AG has an oath to uphold the Constitution, including the elements of the Constitution that provide for a duly elected president to act in a capacity as chief executive. Is Ms. Yates more true to her oath to uphold the Constitution when she actively seeks to frustrate the ability of that chief executive to have his orders well-researched and well-defended by the DoJ, or when she provides for that opportunity?
>The law passed by Congress in this case states that the immigration department is not allowed to discriminate based by country of origin.
This is a minor, nuanced legal dispute that the judiciary must decide. It's not the acting AG's role to prevent the DoJ from preparing a counterargument based on her personal opinions about the potential outcome of such an action.
>The Constitution also states that people are required to have due process before their rights are taken away.
a) Do foreign nationals who have not yet been granted access to the United States have rights under the U.S. Constitution?
b) If so, are the administration's established policies on admission into the U.S., visa issuance, and other long-established intricacies of immigration law consistently applied somehow not due process?
Neither of your statements appear to challenge the President's authority to suspend visas by EO.
>If the acting attorney general felt that the order conflicted with these two, as she clearly did, then it was the executive order that should get ignored.
No, if the acting attorney general felt strongly that this EO violated statutory requirements imposed by Congress, she should resign and get involved in an effort to challenge it, not prevent the DoJ from developing a fair argument for the president's position to present to the judiciary.
If she truly felt it violated the Constitution to a degree that exceeds the violation in the DoJ/AG ignoring the Constitutionally-installed president's instructions and depriving him of the ability to develop a cogent legal argument in support of his position, then you're right, she should have done what she did. But at this juncture, barring a major insight or revelation, there does not appear to be an inherent, significant, or major Constitutional violation in President Trump's order, and Ms. Yates has yet to help identify one. Her conduct fails tests of both reasonability and good faith.
>But the President could have consulted with Congress, and didn't.
It doesn't seem typical for presidents to seek to install such instructions by legislative action. President Obama issued several EOs of a similar nature while Ms. Yates was present at the DoJ. Why did she not resign then?
>He could have gone through Homeland Security and didn't.
This is him "going through Homeland Security". Are you really suggesting it would've been better if he had just privately issued these directions through the chain of command, instead of publicly issuing an EO that everyone can see?
>He could have waited until his nominee of choice was confirmed and consulted them, but didn't.
Is there a reason he should've done that? This just seems like something that would've avoided Ms. Yates's publicity stunt, not something that has any actual relevance to policy. Trump promised this action repeatedly on the campaign trail. Why should he delay it just because Congress is dragging its feet on the nomination process?
>So there is alot of this that is backlash against the lack of due process and the attempt to run the government like a corporation, which is against the law itself.
It seems that all "due process" is being fulfilled. It doesn't appear that you've identified a due process that is being skipped.
"Legal" does not mean "something I think is smart". That's not how democracies work. Up to now, people have continually failed to identify any compelling legal issue with Mr. Trump's order. Trump was voted in by many people who cared deeply about this issue. Everything appears on the up and up, and if an obscure law is being accidentally broken, it's the judiciary's role to recognize and issue orders that will resolve it.
That's the legal system we've set up, and people have had to deal with it literally for centuries. Why is there suddenly outrage over the way this works? Because the media is mad that a guy they dislike has the reins now?
A pretty critical point: Obama used Executive Orders because in part he had a Congress that, courtesy of Mitch McConnell, stated openly that they had no intention of passing Bills on the President's behalf, even if good. That the way to make him a failure was to "do nothing for him". That left Obama with little option but to enact Executive Orders for many things. And with that being said, he still managed to sign less than Bush II or Clinton.
Trump on the other hand has Congress and Republicans firmly in his control, who've shown themselves to be fully "pliant" (or "spineless", depending on your perspective of the world) of all Trump's desires, so Trump has no _need_ of the Executive Order other than to make a statement, "Look at me, I'm the boss. Why would I act like I need approval from Congress?"
There's a distinct difference.
So? Mr. Obama's executive orders were in many cases inconsistent with the law and the Constitution. 'They won't be nice to me!' is insufficient reason for any president to violate his oath of office, whether Mr. Bush, Mr. Obama or anyone else.
However, the 5th Circuit's ruling [1] includes this language:
>the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.
DAPA was, from its inception, widely recognized as illegal and it lost at every stage of the judicial process. Obama signed it knowing it would probably get struck down. Yet, Ms. Yates did not see a constitutional obligation to assume the judiciary's function to interpret constitutionality and legality as it related to these orders. Curious that.
[0] http://www.scotusblog.com/case-files/cases/united-states-v-t...
[1] http://www.ca5.uscourts.gov/opinions/pub/15/15-40238-CV0.pdf
1) Your point on it being "the Judiciaries" role is just plain wrong. Officers of the government, just like officers in the military have discretion about following illegal orders. As evidence: Former Attorney Generals and other people who worked in the Justice Dept. are either speaking out in favor of Yate's actions, or are just not making this argument. At Yate's own confirmation hearing she was asked whether she would follow the law or follow the President's orders if she were confirmed. The people making your argument are the Trump administration, who are the ones on the spot here, and who haven't even been on the job for two weeks yet.
2) "Do foreign nationals who have not yet been granted access to the United States have rights under the U.S. Constitution?"
Yes absolutely they do. Especially if they are being detained by the U.S. government. The Constitution and other laws are more often about limiting what the government can do, then who the government is doing it to.
2a) The people in the initial cases are Permanent Residents of the U.S. They can't get that status removed without some kind of process. And they were being held by Border Protection which brings up direct Habeus Corpus issues.
3) Your point about whether the acting Attorney General should have resigned instead is clearly wrong as well. If following orders does more harm to people than resigning, it is absolutely the correct move to countermand an illegal order. Also, resigning without giving any reasoning just gives the administration cover for their illegal actions, which is more harmful than forcing them to fire you. The only people resigning would help would be the Administration, so ethically, that resigning was not the "right thing" to do.
4) You seem to be confused about the difference between the "Department of Justice" and the "Department of Homeland Security". He didn't consult the Secretary of DHS who was his own nominee on this. And DHS runs Border Protection and a number of other agencies that are the ones enforcing the order. Also, it is typical to consult Congress when you're doing something that might tick off many of our major allies. Especially since Congress was the ones who wrote the immigration act which is at the heart of many of these lawsuits.
5) "It doesn't appear that you've identified a due process that is being skipped."
You mean other than consulting all of the relevant agencies to make sure it doesn't conflict with any laws that cover them, before implementing the change? Consulting Congress before setting up a policy that conflicts with existing immigration law, particularly the Immigration Act of 1965? Setting up an impartial process for green card holders to contest their deportation, which did not happen at all? Giving warning to residents who are travelling abroad that they may have their visa revoked before they leave so they know to put that into consideration? How about setting up a process for the U.S. to continue to meet it's international human rights obligations to protect refugees? Those kinds of things are all "due process" and all actions that you did not cover because the Trump Administration did not do them.
You are technically correct that there is an element of obligation and personal responsibility to refuse to carry out wholly unconscionable orders (i.e., orders that would fundamentally violate the constitutional oath of office), but bear in mind this typically applies only in seriously extreme instances. Just as complaining to your CO that you believe his order may violate the Obscure Act on Military Textiles and Linens will get you laughed out of the room and given a swift kick in the ass, inappropriately misapplying the moral duty to refuse to comply with unconscionable orders will get you fired from the DoJ, which everyone knows and expects.
It should also, again, be noted that Yates was not given any specific order which she is singling out as unconscionable, nor was she personally asked to do anything. She obstructed the president's access to the DoJ. I guess it was in another comment you've left somewhere further down the chain, but yes, the DoJ does have an explicit legal duty to represent the government/executive branch in court, and Ms. Yates chose to pull lawyers off that task.
>4) You seem to be confused about the difference between the "Department of Justice" and the "Department of Homeland Security".
I'm not sure why you think I'm confusing these. I know that DHS subsidiaries run the border. Did I say something that misleads about that?
>Those kinds of things are all "due process" and all actions that you did not cover because the Trump Administration did not do them.
No, lol, those things are not due process. Due process means that the persons whose rights are being deprived received the necessary hearings, etc., before the deprivation occurred. "Due process" does not mean that the president has to ask Congress before he does something "that may tick off many of our major allies".
See Section 212(f) of the Immigration and Nationality Act:
"(f) Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."
Case closed.
Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
Paragraph 2 does not provide grounds for Trump's order. It sets a cap on the percentage of visas which can go to any foreign state in a given year, but does not allow blanket bans on a particular state.
1101(a)(27) does not provide grounds for Trump's order (it defines a class of "special immigrants" for reference elsewhere).
1151(b)(2)(A)(i) does not provide grounds for Trump's order (it provides a definition for "immediate relatives").
1153 does not provide grounds for Trump's order (it defines an allowable scheme of preferential treatment to certain classes of immigrants, such as the highly-skilled).
So Trump did not have the legal authority to suspend issuance of visas on the basis of national origin. Attempting to do saw was a violation of applicable federal immigration law. His executive order was thus unlawful, and it was correct to refuse enforcement.
§1152 and §1182 would seem to be at odds with each other.
But no
Section 1182(f) plainly and sweepingly authorizes the president to issue temporary bans on the entry of classes of aliens for national-security purposes. This is precisely what President Trump has done. In fact, in doing so, he expressly cites Section 1182(f), and his executive order tracks the language of the statute (finding the entry of aliens from these countries at this time “would be detrimental to the interests of the United States”).
Read more at: http://www.nationalreview.com/article/444371/donald-trump-ex...
Meanwhile the federal judge who ordered the stay thinks theress a strong likelihood that the order is either unlawful or even unconstitutional, and a senior Justice official thought it was illegal or unconstitutional.
I'm going to side with the judge and the Justice official over the law firm of Trump and Bannon, LLP.
The oath of office should only be invoked for the most facially plain constitutional violations. If there's a question, we have a judicial system established to settle that. We can't just have random people arbitrarily declaring their opinion that X and Y are "probably invalid" and then redirecting the nation's legal apparatus based on that.
She did exactly what she said she would and what Congress asked her to do. In this case, I'm going to go with someone who has been in the job for years over the self-serving justifications of an administration that hasn't been in office for two weeks.
No, among the DoJ's jobs, the task to represent the USG before the judiciary is literally and explicitly given.
There's a special role in the DoJ dedicated to representing the government before the Supreme Court (Solicitor General), but other employees of the DoJ represent the executive branch before other courts.
See Executive Order 6166 (from FDR) [0], Section 5, which states in part "the functions of prosecuting in the courts of the United States claims and demands by, and offsenses against, the Government of the United States, and of defending claims and demands against the Government [...] are transferred to the Department of Justice."
From my reading, the act of Congress that created the Department of Justice in 1870 [1] had a similar purpose, and FDR's order was primarily to remove ambiguity and centralize, not to substantially change the DoJ's function. But I'm neither a lawyer nor a legal historian, so I could definitely be wrong about that.
In any case, yes, the thing that former acting AG Yates did does directly interfere with the DoJ's actual and real legal obligations to represent the executive branch. She instructed all DoJ attorneys to stop preparing/presenting legal defenses for Mr. Trump's Executive Order.
My reading of Sessions' line of questioning is a "Do you think you'd be able to function in a scenario when you need to tell the President that he is wrong", not "Are you prepared to assume for yourself the functions of the judiciary to satisfy your personal, ethereal sense of justice when a legal challenge against the president's orders is filed?"
[0] https://www.archives.gov/federal-register/codification/execu... [1] http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=01...
FWIW I think banning green card holders was stupid (both legally and politically - predictability is good for a legal system, and we already made a promise to green card holders. Politically he had to have known this backlash would happen).
It's just that...I don't know, it seems so polarized right now that you have to support one of two sides, and both are insane. The natural end game of "the right" is that no one else is allowed to come to America, ever. The natural end game of "the left" is that anyone who wants to come to America can, and the magical institutions of America will transform them into Americans, regardless of what they presently believe or how many of them there are. And there is a ratchet effect on both sides, where if you don't believe the most extreme version, you either hate America and its historic population, or you're a racist xenophobe.
Law enforcement is not the judiciary. They are part of the the executive branch. Their job is to enforce the law under the direction of the chief executive, at the moment President Trump, who was clearly installed by Constitutional means.
Unless Ms. Yates can highlight a clear and present Constitutional violation that justifies disregarding the also-Constitutional obligation to uphold and respect the peoples' elected chief executive, there's simply nothing to go on here.
Thought experiment: if Obama had issued an EO stating that his interpretation of the 2nd amendment referred only to state militias, and as a result he was proceeding to forcibly confiscated all privately owned firearms, would that be constitutional?
The Wikipedia article looks like a pretty good general overview. While it is true that EOs as such are not explicitly accommodated by the Constitution, EO-equivalents with the force of law have been enacted by presidents from George Washington onward. See https://en.wikipedia.org/wiki/Executive_order . If you want more information, please consult Google. EOs are not new.
>Thought experiment: if Obama had issued an EO stating that his interpretation of the 2nd amendment referred only to state militias, and as a result he was proceeding to forcibly confiscated all privately owned firearms, would that be constitutional?
Trump is not re-interpreting the Constitution via EO. He is not overriding binding precedent from SCOTUS by EO (only Congress can do that, and sometimes it requires a Constitutional amendment). He is not running a national confiscation program by EO (though FDR did do this when he used EOs to make it illegal for Americans to own gold) [0].
He is doing something that is considered well within presidential power -- directing the Department of Homeland Security in its duty to vet and screen potential entrants to the United States. Foreign nationals have no right, implicit or explicit, to enter the United States.
Border control is a universally recognized duty that every country not only acknowledges, but actively enforces (and many of our first-world peers are much more aggressive than us). Without such screening, borders are irrelevant. Within U.S. law specifically, it's undisputed that such matters are under the DHS's purview, and that the DHS is under the executive branch's purview.
It seems, therefore, that an EO directing the DHS in these duties would be completely logical, right? President Obama issued several addressing the same fundamental types of issues, though his EOs generally liberalized migration policies rather than tightening them. Why is it legal for Obama to give orders of this nature, but not Trump?
I'm not a lawyer and I don't know if there are specific statutory details imposed upon the DHS in its screening process, but it doesn't appear obvious to anyone that anything about Trump's EO conflicts with any existing law. Even Ms. Yates is unable to elucidate the nature of her purported legal argument.
People are claiming that she had a constitutional obligation to do this which superseded her other constitutional obligation to serve the duly-elected chief executive. Do you contend that any potential statutory conflict rises to that level? If so, it would appear that the AG can only act on laws that had been fully adjudicated and for which there is currently no controversy or unsettled questions of law.
Remember, this is not about prosecutorial discretion; this is the acting AG denying the president access to resources that would typically be available to present his case to the judiciary, whose actual job is to make these determinations.
You seem to be radically redefining the role of the AG/DoJ.
Green card holders legally well defined rights with strong precedent. I would personally research where those are defined and how they were affected by the original EA if I wanted to understand the full context of the former EA's actions.
No.
You really should bone up on the law if you're going to start trying to make arguments about what's legal and what isn't, in a given context.
Yes, indeed: and the choice available which is consistent with that oath is to resign.
It merely asserts that it is her duty to ensure that the DoJ "always seeks justice" and that she does not feel that allowing DoJ resources to compile an argument in support of Mr. Trump's order is consistent with that.
Remember, as a member of the executive branch, she also has an obligation to respect and serve the chief executive duly elected and installed by the American people. Ms. Yates is [was] an unelected appointee.
While I agree in principle that blatant and serious constitutional violations (the only type someone who is not a member of the judiciary can recognize) require real defiance, if there truly is a cogent Constitutional defense to be made here, would one not expect it to be presented? Ms. Yates does not appear to be defending the Constitution in any meaningful way here, and indeed, she does not claim to be doing so in her letter.
[0] https://www.nytimes.com/interactive/2017/01/30/us/document-L...
You've been repeating your argument nearly word-for-word throughout the comments here. It's very clear you stand firmly there; nobody has convinced you otherwise despite repeated attempts engaging your points directly, even when your comments do not directly respond to the OPs to which you reply (like me).
Checks and balances are the core of our government. Those checks and balances exist as much within the branches as they exist across the branches. Resigning is an action that neither checks nor balances—and it ought not be expected of anyone, appointed or otherwise. Executive officials, especially within the DOJ, have a responsibility and obligation to the People and Constitution first, and somewhere after that the executive. That's what their oath demands. They don't take an oath to the executive.
You're putting words in her mouth. She has not claimed that the Order was unconstitutional. She has not claimed that allowing the DoJ to do its normal work of providing representation to the USG in court actions violated her oath of office. She was not personally given an unconscionable order from POTUS; she chose to interfere in the DoJ's routine work of representing the USG before the judiciary. At this moment, the only viable motive appears to be the desire to make a loud political statement.
"Unconstitutional" means some provision of the Constitution is violated. It doesn't mean "I don't like this law". It doesn't mean "I REALLY don't like this law". The Constitution is a real thing with real words in it, and if those words are not contradicted by an act, it's not unconstitutional. While unconstitutionality is one way in which things can become illegal, it's not the only way, so saying it "may not be legal" isn't claiming it's unconstitutional either.
Ms. Yates does not state that the President's order is unconstitutional. I'm not saying she states it but it doesn't count because she doesn't recount her argument or rationale, she simply doesn't state it. Since she's a lawyer and lawyers thrive on technicalities, she p
>You've been repeating your argument nearly word-for-word throughout the comments here. It's very clear you stand firmly there; nobody has convinced you otherwise despite repeated attempts engaging your points directly, even when your comments do not directly respond to the OPs to which you reply (like me).
I've already addressed the resignation comments elsewhere downthread, and as you point out, the repetition is tiring. I'm sorry if you were offended that I passed over it in this specific reply and chose instead to focus on correcting the incorrect belief that because Ms. Yates thought the order was unjust, she also thought it was unconstitutional, or that her oath to uphold the Constitution mandated her choice.
One can believe something is both Constitutional and unjust, and indeed, a great many things are.
>Resigning is an action that neither checks nor balances—and it ought not be expected of anyone, appointed or otherwise.
No. I'm repeating myself here specifically because you've asked, so please don't try to hold this against me again in another comment.
Government officials resign over personal quibbles because they respect their office and role as representatives of the People of the United States.
If the People have placed that official in a position where they're duty-bound to obey or implement a measure to which they take serious personal umbrage, the honorable thing is to recognize the inherent personal conflict and step aside. This allows the peoples' will to be executed and it allows the moral officer to retain his/her personal integrity.
A person who grasps to the office knowing that he/she cannot faithfully execute its duties and thus requires his/her superior to catch on and make the termination on the people's behalf is showing blatant disrespect for their office and its obligations to the American people and the republican-democratic way of life. Government officials must not forget that their office is not to pursue or represent their personal affairs, interests, or opinions, but those of the people of the United States.
This pattern was followed in the Saturday Night Massacre from the Nixon era, in the which two [acting] AGs turned in their resignations in rapid succession because their personal ethical codes did not allow them to comply with President Nixon's order to fire the Watergate special prosecutor.
Please also note that again, we're talking about specific, already settled things. Saying "Well, I don't think the people want that, so I'm not circumventing their will" is not a real excuse; for these purposes, "the peoples' will" is expressed whenever Constitutional governance is followed. If the people have installed a chief executive whom the AG finds distasteful, the AG is still bound to recognize that executive as the peoples' representative.
All of this applies equally up and down the ranks. It's equally applicable to Kim Davis, the county clerk in KY who refused to comply with SCOTUS's ruling in Obergefell. If she was unable to find some compromise position that would allow her subordinates to file the papers for her or whatever (which, afaik, she ultimately did), she was duty-bound to resign. Kim Davis's refusal to show respect for her office and choice instead to make a political spectacle of herself was very sad.
I'll add that while such unprofessional behavior from a low-level county clerk may not be completely surprising, such behavior from the acting head of the Department of Justice is another story.
>Executive officials, especially within the DOJ, have a responsibility and obligation to the People and Constitution first, and somewhere after that the executive.
Insofar as the executive is duly installed by the People via constitutional means, an obligation to uphold the People and the Constitution is an obligation to the uphold the executive, at least insofar as doing so is part of the structural configuration of the government, and in this case, it is. The DoJ represents the USG before the judiciary. That representation is precisely what Ms. Yates was trying to disrupt.
Everyone agrees that the people knew what they were getting when they put Trump in. Everyone also agrees that there is no glaring constitutional violation in Mr. Trump's order.
If the [acting] AG is at liberty to individually dictate DoJ policy based on nothing but his/her personal feelings of justice, in what capacity are they operating as agents of the people? Why do we need a judiciary and a legislature if the enforcement arm is free to disregard their work, as you seem to be suggesting?
Again, this is not a matter of prosecutorial discretion, in the which the AG would be able to decline to prosecute on certain statutes on a case-by-case basis (and if it just so happens those case-by-case numbers break down with 0 prosecutions, so be it). This is not even the acting AG refusing an unconscionable order. This is simply the acting AG injecting herself into the daily, routine work of the Department of Justice because of her personal sense of justice, with wanton disregard for her role as an officer of the people of the United States, who installed Mr. Trump as the chief executive, and who was quite clear that he would do something like this shortly after getting into office.
We have different opinions on some things related to expectation of behaviors in certain conditions.
Yes, indeed: and the choice available which is consistent with that oath is to resign.
While I'm sure that's always or virtually always been true in practice, nothing in the relevant U.S. Code appears to require it (it is definitely not the case for the Supreme Court).
And there are no legal guidelines to whether you are allowed to be a federal judge of any kind. The same is not true of prosecutors.
http://theweek.com/speedreads/677012/watch-jeff-sessions-urg...
In this case, government cannot be compared to a business, where a subordinate publicly questioning a superior's decision is indicative of unruly management, leaving the superior in a position where he/she needs to reassure the public that he's/she's in charge. Government doesn't work like that.
Nobody "needs" to get fired. From where would the need come?
It also isn't lost on me that he made his reality television name by saying "You're fired."
So yeah, you can do it. But you'll get what you get.
> It's the entire reason there are 2 other branches of government.
You have DHS officials refusing to obey a court order[0] and the White House refusing to share information with Congress[1]. Where are the checks and balances?
0. https://www.theguardian.com/us-news/2017/jan/29/customs-bord...
1. http://thehill.com/homenews/senate/317006-rubio-state-asked-...
If you answer yes to this question, you should find another career. Engineers have ethical responsibilities as well.
edit: Never mind. Parent was about storing not about sending passwords in clear text.
And of course, keep in mind that 'following orders' is never a particularly good reason to break with your own morality.
Except, for the health and continuing stability of the republic, one should not expect this in cases where the President is judged by legal experts to be outside the Constitution. On principle alone, we do not expect civil servants to simply "do whatever the President wants"—that way lies tyranny. We expect them to uphold and defend the Constitution, not executive agendas. That's the oath they take. Every President is rightly subjected to scrutiny and criticism when they fire people for disagreement. We created this system of government to avoid the abuses of unchecked power.
How nice that Trump right out of the gate has kneecapped his administration in terms of intelligence gathering! At least until a puppet replacement is approved by the Senate.
[0] https://www.nytimes.com/2017/01/30/us/politics/trump-immigra...
[Edit: earlier in the day I read that the acting AG was the only Senate approved signatory. As somebody below me pointed out, that is no longer the current interpretation of who is able to sign these letters in the provided link. I'm keeping my post up as originally written because things moved so dang fast today.]
The restriction is against seven countries. Presidents Obama and Carter both enacted immigration bans against Muslim dominant countries (Iraq and Iraq). This still leaves over fifty majority Muslim countries unaffected by the EO including the five most populated countries.
It is not any more a Muslim ban than when past Presidents put restrictions on immigration from countries labeled as dangerous.
The other countries aren't banned because he has business interests there: https://www.google.com/amp/s/amp.cnn.com/cnn/2017/01/29/poli...
"The list does not include Muslim-majority countries where the Trump Organization does business, including Egypt, Saudi Arabia, Turkey and the United Arab Emirates. In financial disclosure forms during the presidential campaign, he listed two companies with dealings in Egypt and eight with business in Saudi Arabia. And in the UAE, the Trump Organization is partnering with a local billionaire to develop two golf courses in Dubai."
Note this is not an instance of prosecutorial discretion. Ms. Yates is not refusing to prosecute people under the law; rather, she is instructing her subordinates to refrain from doing the necessary work that would allow the government fair representation during hearings on the law.
If she is unwilling to fulfill her job duties for personal reasons (and likewise instructs her subordinates to stop fulfilling theirs), the appropriate course of action is to resign, is it not? If she's unwilling to do that and wishes to make a spectacle of herself, wouldn't a dismissal be the expected resolution?
How is dismissing an acting AG who refuses to enforce the law "purely political" and not an expected, appropriate response to someone who has refused to execute the laws of the country they're supposed to represent? Does it make sense to allow an acting AG to remain in place after she intentionally and explicitly declines to recognize the president's authority to direct the executive branch?
An E.O. that conflicts with statute or the Constitution is not law, in fact, it a violation of the law.
> As far as I know, Ms. Yates's job as acting AG is to preside over the enforcement of the law, not to decide whether it is constitutional
Deciding whether the is a reasonable legal argument for an action before defending it and not defending it otherwise is absolutely her obligation, both as a officer of the court and a public officer with an oath to the Constitution.
> Would Democrats be pleased to see the same latitude offered to Senator Sessions once he's installed?
Democrats prime objection to Sessions involves recognizing that this job responsibility and being concerned that Sessions' past record indicates he would exercise it poorly, from their perspective.
That's not up to the Attorney General to decide, that's up to the Supreme court to decide.
And that is not the case, here. The Executive Order in question is firmly grounded in section 212(f) of the Immigration and Nationality Act.
Get your facts straight.
I have seen a lot of commentary arguing one way or another regarding this issue. My personal conclusion at this time is "firmly grounded" would be too strong of a statement, in my opinion.
Incorrect. It's a question that only the judiciary is empowered to authoritatively resolve [0]. Were questions of Constitutionality (and whether or not an executive act is both grounded in statute and not prohibited by another statute is, given the Constitutional roles ofmthe legislative and executive branch, ultimately one of the Constitutionality of the act) not one on which the President (and various other officials) were qualified by virtue of their office alone to decide and act on prior to judicial resolution, oaths to the Constitution and/or laws such as those taken by the President and other public officials would be meaningless.
[0] Except that Congress may also do so, but only in the context of impeachment proceedings based on the purported illegality and without binding effect outside the specific proceeding in which it makes the determination. But its decision in such a case is final and unreviewable.
That doesn't sound like a case at all. She cites no law nor any Constitutional provision that may be violated. She provides no citation to case law.
She states that the order "has been challenged in a number of jurisdictions" and that DoJ has a "solemn obligation to always seek justice and stand for what is right", which apparently is depriving the duly-elected chief executive of a fair legal defense to present in those challenges based on the acting AG's personal opinions.
She implies that "statements made by an administration or it [sic] surrogates close in time to the issuance of an Executive Order" may play some role in some type of illegality, though this clearly violates accepted standards of judicial interpretation, which consider the law as written, not the extralegal public statements of people involved in its development.
Let's call a spade a spade here. No one can seriously believe there is a strong legal argument for her conduct or that it, in any way, represents typical or expected behavior for the head of DoJ, which is a division of the executive branch under the President's authority and jurisdiction.
Ms. Yates is simply grandstanding and taking advantage of an opportunity for positive personal publicity and negative publicity on a political opponent. In her search for exposure, she adds fuel to the nefarious fire that seeks to threaten the integrity of American democracy, promoted by mainstream media outlets who absolutely cannot stand that people are using the internet to escape their chokehold and would rather see the whole country burn than lose their ability to control the propaganda diet of the average American.
I made a quick and dirty transcription of the interesting bits, but I encourage you to view the whole thing[1].
Sen. Jeff Sessions: Do you think the Attorney General has a duty to say no to the president when asked to do something that is improper? ...
Sally Yates: I believe the AG and the deputy AG have an obligation to follow the law and the constitution, and to give their independent legal advice to the president
Why is Ms. Yates comfortable allowing the judiciary to make its decisions on Mr. Obama's illegal EOs but not comfortable allowing it to do so on Mr. Trump's EOs? There's a reason we have a legal system with strict procedures and rules regarding argumentation, standards of evidence, etc. In ordinary conditions, a fair decision cannot be rendered by an attorney sitting alone in a room, and, barring a blatant constitutional violation, it's improper to redirect the resources of the DoJ based on such decisions.
Firstly, Obama's EO's were not "illegal": they were well thought out and released only after much consultation with the DOJ to precisely ensure that such a situation does not occur. Now, we have a week-old President with no political experience rapidly firing off EO's without consulting the DOJ. And the EO's themselves seem to be unconstitutional and disrupting the lives of many people.
But the answer to your question is: she is more comfortable because in her opinion as a lawyer, the Immigration ban is unconstitutional and cannot be enforced. She voiced that opinion knowing that she had the possibility of being fired. I don't understand why you keep going off on tangents (Obama passed illegal EO's!) instead of simply accepting the fact, the fact that Ms. Yates did precisely what she had sworn to do: uphold the constitution.
> In ordinary conditions, a fair decision cannot be rendered by an attorney sitting alone in a room, and, barring a blatant constitutional violation, it's improper to redirect the resources of the DoJ based on such decisions.
Precisely. In her opinion, this IS a blatant constitutional violation.
They were illegal according to the 5th Circuit Court of Appeals and the Supreme Court of the United States. This has already been adjudicated. Look up Texas et al v. United States (from 2016).
>Now, we have a week-old President with no political experience rapidly firing off EO's without consulting the DOJ.
Is there a source for the claim that Mr. Trump did not consult the DoJ before issuing this EO? I haven't seen it if so. Regardless of whether Trump sought advice directly from the DoJ or not, Trump advisors have independently stated that the Order was drafted by attorneys and was the product of serious legal research and consultation (though not necessarily with or without attorneys employed by the DoJ). What's your argument here? Trump didn't use the right lawyers to help him draw up the EO? Is there some reason the president is required to use specific lawyers to assist him in drafting orders?
>And the EO's themselves seem to be unconstitutional and disrupting the lives of many people.
No, no one has presented a credible constitutional argument against the EO. The only legal arguments I've seen are related specifically to statutory, not constitutional, restrictions.
Ms. Yates herself makes no legal argument, either constitutional, procedural, or statutory. Her letter [0] contains 0 citations.
That an order is disruptive to some people has nothing to do with its legality.
>But the answer to your question is: she is more comfortable because in her opinion as a lawyer, the Immigration ban is unconstitutional and cannot be enforced.
She is, of course, more than welcome to her personal opinions. However, it's extremely unprofessional to allow political proclivities to disrupt one's work.
If she could not in good conscience discharge the responsibilities of the AG, which include supporting the chief executive, the morally consistent option would've been resignation. Like the rest of the government, the DoJ is an institution that belongs to the American people, and leading it comes with an established, non-malleable set of roles and responsibilities, which include the responsibility to advise and represent the executive branch. Unless doing that would require Ms. Yates to violate her oath of office (and she doesn't claim it does), defiance is not justified.
>I don't understand why you keep going off on tangents (Obama passed illegal EO's!) instead of simply accepting the fact
It's not a tangent. Ms. Yates apparently feels the president does not have the legal authority to make orders of this nature when President Trump is in office, but that he does have the authority when President Obama is in office.
>the fact that Ms. Yates did precisely what she had sworn to do: uphold the constitution.
No, she didn't. She doesn't claim that she did. She makes no constitutional argument in support of defying the president, which she would surely be morally obligated to make if there was a credible one. She makes no legal argument of any type.
She merely states that she believes it's her responsibility to ensure the DoJ always does what's right, and apparently to her, "what's right" is based solely on her opinion and not the will of the American people based on principles of republican-democratic governance and the constitutional mechanisms that enact it in this land.
Really she seems much better suited to the private sector, where the personal opinion of the top dog is virtually as good as law. But that's not how a free government of the people and by the people works.
>Precisely. In her opinion, this IS a blatant constitutional violation.
No, there is no evidence that she believes this. There is no credible constitutional argument floating around out there (except perhaps the argument that the president has no authority to issue any EOs at all), and Ms. Yates does not claim to have one. She does not say that her oath of office obliges her to defy the president based on the competing obligation she owes to the supreme law of the land. She does not even definitively say that she thinks the order is illegal, just that it may be (because she knows it's not within her purview to decide whether specific laws are legal or not). She then announces that she will refuse to allow the DoJ to develop arguments in support of the president's position, depriving the chief executive of legal resources that are important and necessary to representing the executive branch before the judiciary. If anything, her actions will end up only prolonging the effects of Mr. Trump's order and preventing the judiciary from promptly sewing it up if it is indeed illegal.
If the constitutional violation were blatant, the judiciary would be moving rapidly to respond and support Ms. Yates's decision. That is not occurring now because there is no such justification, only media hysterics.
The judiciary recognizes that any potential legal challenge will be non-obvious and require careful evaluation and judgment after each side is given a fair hearing and the opportunity to present their arguments according to accepted legal standards and the long-established legal processes that we've set up to handle such nuanced challenges and claims.
There is nothing here, nothing at all. You're right, she knew she would be fired and that it would set off a media firestorm. She was going to be displaced next week when Senator Sessions gets confirmed and this was a way to go out in a blaze of glory and raise her public profile, perhaps launching a career as a politician in a liberal district. But I know of no legitimate argument that her conduct was anything but self-serving.
[0] https://www.nytimes.com/interactive/2017/01/30/us/document-L...
I agree with most of what you say, but why do you feel the actions she took were morally inconsistent? What is the moral imperative to quietly resign rather than to call attention to an issue you feel merits greater public scrutiny? While you can accuse her of having the wrong moral framework, I don't see how you can conclude that her behavior is inconsistent with the framework she believes in.
There's a very simple answer to this:
She did not believe that the Obama EO was unconstitutional, whereas she believed that this one was. Then, everything makes sense. You can rant about how "there's no credible argument", but I'm inclined to believe an Attourney General over someone on an internet forum with regards to the law.
So tell me this: what should she have done if she believed the EO, as applied, would be unconstitutional?
Edit: also the judiciary is moving swiftly, in the past two days, the EO has been practically gutted in the courts.
You ask a reasonable hypothetical, but I don't think it matches the circumstances here. If Yates felt that she could not in good faith enforce the order because it was unconstitutional, I think she would have been very clear about this in her memo: https://www.nytimes.com/interactive/2017/01/30/us/document-L...
Instead, while not ruling out unconstitutionality, she pointed to the "broader" responsibility she feels the leader of the Department of Justice should have. I thought she said quite clearly (for a lawyer) that although she was uncertain whether the order was legal, her refusal was because she judged the order to be unjust and unwise. Personally, I greatly respect her differentiation between "constitutional" and "right".
Very good point. I hate that it can be taken as taking a political stand whereas it appears to be more of a humanitarian one.
And I just saw a clip from March 2015 of Jeff Sessions asking Sally Yates during her confirmation hearing as deputy AG whether she would stand up to the president if what he's asking her to do is not lawful, and she stated she would. And now she's doing exactly what she promised she'd do.
What smells, sounds, and looks like politics, is having a political operative placed on the NSC as a regular attendee. And having an executive order providing no credible improvement to national security by the estimation of numerous national security experts and over 100 career diplomats at the State Department. Distilled, it's an EO that appears throws meat to an anti-Muslim nationalist base at the expense of refugees, global opinion of the U.S., and visa holders in the U.S. needing renewal inside the temporary ban who now are at risk of deportation primarily because they're Muslim. But it also puts the president's own agenda at risk by putting a spotlight on his impulsiveness, and leaves him open to political distractions and even reprisal.
At best this EO is clumsy. At worst it's intentional. Either way it's totally self inflicted distracting nonsense of the administration's own choosing. Yes he promised to do something like this, but he promised to be a bigot and break the law, and I think that's a campaign promise he could just not keep. So it appears to be rather intentional and clumsy.
She is claiming that there are potential legal conflicts without being specific because she knows that her only defense is to claim that she is bound to disregard the order by a higher law. Like a lot of things lawyers say, it's just enough to give her a shade of grey sufficient for plausible deniability. Without such a claim, there'd be no question that she had failed to fill her obligations as an officer of the law, because as we've already established, it's not the AG's position to determine the validity of the laws. We elect legislators and install judges to perform those functions.
The AG's duty is to fairly enforce the laws without allowing their personal inclinations to supersede the will of the people expressed through the republican-democratic processes under which we are governed. Executive orders, including executive orders that address immigration, have long since been established as lawful.
If Ms. Yates sees a blatant constitutional violation in President Trump's order, the correct thing to do would be to resign and immediately work to assist challenges to the law via the long-established processes that permit that. As a high-ranking official in the DoJ, she would surely have the knowledge and connections to do this expeditiously.
Would Democrats have been pleased with Loretta Lynch if she refused to do her part to uphold Obama's EO's regarding immigration enforcement? Something tells me they wouldn't.
I think mostly its because Obama's acts were considered "compassionate" and right by some. Others with a more cynical view would say that issuing an EO that is entirely to the benefit of foreign nationals who are guilty of illegal acts against the United States is bordering on treason.
[1]
What was DAPA? It ensured that federal funding could be used to provide benefits such as healthcare and schooling to migrants who did not comply with immigration law.
On the contrary, I find it thrilling, and am eager for more in this vein.
You have the facts on your side. Use them to win the argument, already.
I agree it would have been educational for many here to include a few of the definitions of fascism[0] as a political/idealogical term, just to drive home the point of how closely Trump is skirting the edge already after only a week or so.
[0] there's not a single generally agreed-upon definition, but you don't get extra points if you "only" hit a couple of them.
However, to address your point that the term was used for name calling:
https://en.wikipedia.org/wiki/Definitions_of_fascism#Fascist...
Now of course the word "bully" is a purposeful understatement (and of course saying "fascist" when you mean "bully" is no proper way of arguing on HN). And that would be that, if this were some other frivolous topic. But it's quite fair to argue that the situation is a lot closer to the various serious definitions of fascism than it is to the mere vague pejorative. The world is looking in horror, and we're all thinking it. Maybe another week of these "crazy antics" before we can say it without being downvoted? Don't wait too long though, or you might not be allowed to say it at all.
If I was President/General/CEO and someone doesn't do the thing I have ordered, i'm going to fire them as well. I think you should be more worried about insert extremely generic anti-trump comment regarding perceived intelligence, narcissism, small hands, refusal to listen to experts, climate denial or other such comment
It's a good thing you're not a CEO then. Ignoring the expertise within the company, and preventing employees from doing their job (which in her case was to try Trumps order), would be quite foolish.
I'm going to suggest that you consider how the Volkswagen diesel scandal came about. Which is most likely:
* That lawyers and compliance managers stood up and did their job?
or
* That top brass made a decision, overruling legitimate opposition?
> I think you should be more worried about insert extremely generic anti-trump comment regarding perceived intelligence, narcissism, small hands, refusal to listen to experts, climate denial or other such comment
The comment or validity thereof?
Both may get you fired; morally one is correct and the other isn't.
great chat.
This isn't behavior that should be encouraged, neither in you nor in Trump, and your original sentiment that we shouldn't worry about it isn't something I'd subscribe to.
At no point have I said I take a view that is often taken in HN, that is, if you can play the game and win, it doesn't matter how you do it. I actually don't think that.
You are inferring that I am because of your pro-trump bias and because i responded to the parent with insert generic content, which could be construed as being neutral/pro-trump. For the record, I think the mess Americans have created for themselves serves them right; is a sign of a broken democracy, an ignorant and uninformed populace where only extremism will get people to the polls. Unfortunately Australia is part of a world where the actions of a bigoted maniac will affect us; and I can hardly say that our political leadership is any better (although our democracy is significantly stronger with compulsory voting and preferential voting)
> At no point have I said I take a view that is often taken in HN, that is, if you can play the game and win, it doesn't matter how you do it. I actually don't think that.
But you literally wrote this in your original post:
> If I was President/General/CEO and someone doesn't do the thing I have ordered, i'm going to fire them as well.
How else are we meant to interpret that?
On the last part I only have this to say: I don't have pro-trump bias. I am very anti-trump, but not as a premise, but rather as an end result of my rationality.
>how else are we meant to interpret that
You are assuming malevolence in my theorised intentions and actions without having any basis for it. I think the best way to interpret that would be that I have a not unreasonable expectation of loyalty. Remember here that the parent comment specifically said
>The major worry for me is Trump's seeking to punish anyone who shows disloyalty.
Where we are in fact talking about loyalty and not the potential criminality or morality of the executive orders of a man who is has the best chance in a long while of taking us all into a world war
The only basis I have to possibly assume things from is what you write.
You made the comparison from someone disobeying an order based on a professional assessment that the order was unconstitutional - to an employee disobeying an order.
The only comparison in that case that would be apt would be an employee that is more knowledgable in their field than the CEO issuing the order.
If this is not what you meant, then you shouldn't have written it. It's not based on any bias from my side.
> Where we are in fact talking about loyalty and not the potential criminality or morality of the executive orders of a man who is has the best chance in a long while of taking us all into a world war
If this is from Trumps perspective, I might be inclined to agree, but if so, your original comparison makes even less sense. Dictators rely on loyalty, leaders listen to council, regardless of business or politics.
There's a difference between disobeying an order out of pettiness and out of your professional assessment.
You said you mis-typed, which is fair, I'm just not sure what you meant to say.
And on bias:
bias
noun
inclination or prejudice for or against one person or group, especially in a way considered to be unfair.
No, I do not have a bias. I judge anyone only on what they say and do.
Great, we would probably enjoy each other's company.
The only basis I have to possibly assume things from is what you write. You made the comparison from someone disobeying an order based on a professional assessment that the order was unconstitutional - to an employee disobeying an order.
Well I think we are interpreting the parent paragraph and my reply in totally different lights. As I point out elsewhere, I think there is a difference between a sackable offence through disloyalty, and not following an order because you don't agree with the validity of it, expert or not. I am not making any claim regarding the actual substance of the executive order; or whether trump's use of disloyal is 'correct' (I personally think it's a beatup) ; only that disloyalty is undermining and is a fireable offence..
>Dictators rely on loyalty, leaders listen to council, regardless of business or politics.
Mate, the whole fucking world revolves around loyalty; also known as friendship or cordial business relations to change spheres again. It holds democracies together just as much as dicktatorships. Doesn't make disloyalty any less of a fireable offence.
there's too much strong systemiser here on both sides. Anyway, not my country, and probably won't be one for much longer, which is going to have some pretty profound implications. Enjoy the fireworks and stay safe.
It doesn't suggest that their respective CEOs disregard the counsel's input. If it's still relevant to pursue their corporate interest in very fresh legislative ground afterwards, that's another thing.
While I might be persuaded in general that amendments should be made and the constitution not be static, immigration isn't a new frontier. And in that area, it's not in need of revision.
If you are a whistleblower, and you claim something is illegal then I don't expect you to accurately make a case that it is so. You may have just felt it was illegal, when it was not and I'll give certain leeway in making the wrong decision there.
However if you are a lawyer, and not only that but the supreme prosecutor of the Federal government, you ought to be able to properly define why something is illegal not just publish a press release that essentially says "it's my gut-feeling this will fail".
She is supposed to make the best case possible for the presidency and allow judges to decide if something is illegal, and someone is guilty or not guilty. Simply saying "he's guilty, I'm sure, but no I can't tell you why" is not a solid answer.
I kind of thought you must be joking, since revolving AGs were a hallmark of the Bush Jr era, to legalize torture, etc. But in case not, here is a decent place to start:
https://en.m.wikipedia.org/wiki/Dismissal_of_U.S._attorneys_...
As an edit: it probably wouldn't have been reasonable for her to put up an intentionally weak case, but if the order isn't able to stand up in court, then what?
The major worry for me is Trump's seeking to punish anyone who shows disloyalty. If Trump thinks he can have something done, I worry he'll demand people below him do so, or replace them with someone properly spineless.