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?"
> 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.
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.
Please point to Obama's EOs that have been shown (or even suspected) to be unconstitutional. It's hard to find without being bombarded with partisan opinion pieces or quotes to Trump threatening to strike down "unconstitutional EOs"
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.
>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.
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".
There are two kinds of process in government. On the policy level there is making sure you have taken all the correct steps to ensure that the new policy is fair and follows the law. There is also the individual level where each person affected by the policy is given a chance to have a fair hearing and to appeal any unfair decisions. The Trump administration failed to do either, and this is part of the reason why the Acting Attorney General chose to resign to begin with.
>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.
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."
§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”).
The National Review's article basically boils down to "well, we found this section that allows suspending entry of some people, and even though there's another section explicitly forbidding doing this stuff based on national origin we're going to say he has essentially unlimited power to do whatever he wants".
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.
[0] http://www.yalelawjournal.org/note/executive-orders-in-court