What I find worrying is she ordered that the DOJ not support the President without any clear conviction that the law was unconstitutional, it smelled of an entirely politically motivated action not grounded in US law.
The decision to prosecute a defendant or not (or defend a statute, or not) is at the discretion of the prosecutor, barring some sort of statutory requirement.
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 will find that that support dwindles day by day. The country has always been split roughly down the middle between conservatives and liberals, and liberals are generally united against Trump.
What happens when his conservative base starts dwindling as he institutes more and more measures which run counter to both conscience and conservative principles?
> Trump will find that that support dwindles day by day.
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.
> No one invented "support dwindles" comments when Obana's popularity was scraping rock bottom.
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.
> Trump has the support of roughly half of the country
Per the latest Gallup daily tracking, 51% disapprove, 43% approve, and the quickest President to majority disapproval in the history of the tracking poll.
> The same polls that predicted Hillary's win
Nope; one because the Gallup daily Presidential approval tracking poll is not an election poll; two because polls don't predict anything, models that use polling data as an input do.
> I'm not buying it.
Facts remain facts regardless of whether they are convenient to your preferred team.
Hilary did win. The popular vote. Which is really what most of the polls were tracking. 80,000 votes out of 130,000,000+ swung the EC. Aside from holding an actual election, no poll can get the margin of error down to that level. The polls were not wrong. They were polls.
Even in such a case, the AG should be free to ignore the recommendation and say "sure, we've got enough evidence, but we're not going to pursue it". For example, if the charge is minor enough, or if the optics of it look bad, or the person in question were already being prosecuted by a different office, they could tell the FBI Director they weren't going to bother, and then go hold a press conference to explain why (so that the FBI Director doesn't beat you to the press to say "we've got them dead to rights and they won't prosecute for [X] reasons!").
Except that it isn't a law. It's an executive order. The President isn't a dictator and doesn't get to rule any department by decree. If the secretary feels that the order is illegal, they can refuse to follow it, and get forced to resign, but then the President would still need to find someone else to follow the order.
The executive order was backed by the law though. The President does have the powers he exercised, at least, near as I can tell from the US Code cited in the order. I don't necessarily like the order, or how it was carried out, but I'm not sure her actions were justified on the grounds she cited.
Aren't many of the objections to the order based on constitutional concerns like depriving people of due process? That would override anything in the US Code.
Get real. The objections to the order are based exclusively on whether there's an (R) or a (D) next to the President's name. Nothing more. Incredible to see how many people suddenly "care" about the Constitution after 8 years of Obama wiping his feet on it.
Maybe because George W. Bush didn't pull anything like this and he was President during 9/11? You can't claim that the "D" is just as bad as "R" and then forget about every other President from both parties who didn't go about indiscriminately banning people with Permanent Resident status from entering the country.
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.
Why, are you confused about whether to downvote me? I don't see (a) why it should matter or (b) that it's any of your business... The fact that you need to know the letter next to my name to evaluate my statement is exactly what is wrong with America.
That's interesting. I totally see this as a valid argument (and I don't disagree that this might be politically motivated on the judge's part). However, it seems to me that
>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.
If she is unable to faithfully discharge her duty to execute U.S. law, she should resign. She offers no argument to support her claim that the order was not lawful, other than her self-evident personal disagreement.
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).
> There is nothing in Trump's EO that singles anyone out by religious affiliation or background.
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."
" It has explicit exceptions for "religious minorities"."
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.
Western governments around the world make special considerations for persecuted minorities all the time. That is 'singling out' usually on the basis of ethnicity or religion, sometimes sexual orientation.
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.
> and states that the refugee's claim should only be prioritized if they are legitimately a religious minority
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.
>WTF does religion-based persecution have to do with "legitimately [being] a religious minority"?
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.
I would say that while the statement is false, context is required.
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.
I'd say the context just makes it worse, since it would have been so easy to word it in an unobjectionable way. Give exceptions for people suffering from religious persecution, and you're all set.
It isn't a law, it's an executive order. If it was something passed by Congress, I would agree with your point, but it is not. So it is down to the acting attorney general's judgement on whether to defend the order.
While it is true that EOs are not statutes enacted by Congress, they are usually binding law. As a layman, I'm not qualified to argue the matter in detail, but it's obtuse to pretend otherwise. EOs with the force of law are not new and have well-established precedent. This appears to be a good overview. [0]
The orders only have the force of law if they are based in laws already passed by Congress. If the order conflicts with these laws or the Constitution, it's the order that gets ignored, not the laws.
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.
I think the law the president is relying on is 8 USC ยง1182(f) which states in part:
"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."
>The orders only have the force of law if they are based in laws already passed by Congress. If the order conflicts with these laws or the Constitution, it's the order that gets ignored, not the laws.
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?
>The law passed by Congress in this case states that the immigration department is not allowed to discriminate based by country of origin.
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."
And what's the Constitutional argument that the President is not allowed to issue EOs of this type? What's the argument that Mr. Trump's EO specifically violates the Constitution?
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.
Perhaps you can educate us, then, when the executive branch gained the power to create law in the form of executive orders?
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?
>Perhaps you can educate us, then, when the executive branch gained the power to create law in the form of executive orders?
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.
Resigning neither defends nor upholds the Constitution. It should be expected that one would go as far as one could, until such time as one could go no further (like, by being fired), to uphold and defend the Constitution. If everyone simply resigned, the oath would be meaningless, and the republic would fall. Inconvenient as it often is, we need people to stand up and refuse to resign when they feel the Constitution is threatened by executive or congressional action.
Ms. Yates has presented no Constitutional argument against President Trump's order. She has not even presented a basic legal argument against it. Her one-page letter [0] cites no statute, no section of the Constitution, no precedent or case law. It does not claim that she is bound to defy President Trump in order to remain fast to her oath of office.
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.
Why is that the only choice? I don't get this idea that you must either obey or resign. What's wrong with refusing to obey, not resigning, and giving your superiors the choice of accepting that or firing you?
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.