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.
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.