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 §1182(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?
> 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?
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?"
You claimed you didn't want to get into the details as you weren't "qualified" but you seem to be posting alot of the same points from people who want to believe the administration is completely blameless at this. Which is simply not the case. To go over this point by point:
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.
>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."
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.
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.
You're talking past my point to a different one. And no, as both a principle and rule, I do not expect everyone to lay out their case when refusing to go along with an order they believe to violate their oath and/or the Constitution. Acting AG Yates made it clear that she questioned the legality and justness of the order and would not be able to defend it. She also knew exactly what would happen next.
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.
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?
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).