This world just gets more amazing. This afternoon when I heard that the head of the US Department of Justice, Acting Attorney General Sally Yates, had refused to defend the Immigration Executive Order (EO) in court, my first thought was, if she didn’t exist, Trump would certainly want to invent her.
She’s done him perhaps the largest favor any Democrat has done in his young Presidency. Let me count the ways … but first, I’ll review the details about the legality of the EO.
The enabling authority for the Executive Order is 8 US Code 1882, which says in part:
Suspension of entry or imposition of restrictions by President
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.
That seems crystal clear. However, the President is a businessman. He doesn’t sign anything until the lawyers have vetted it. In this case, the EO was signed off by two separate government legal authorities—the White House Counsel, and the Office of Legal Counsel of the very Department of Justice headed by Sally Yates.
In other words, there are a lot of folks who say it is legal.
Now, her justification for her actions is most bizarre. Here is the relevant part of her statement:
On January 27, 2017, the President signed an Executive Order regarding immigrants and refugees from certain Muslim-majority countries. The order has now been challenged in a number of jurisdictions. As the Acting Attorney General, it is my ultimate responsibility to determine the position of the Department of Justice in these actions.
My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.
“Statements made by an Administration”? “Wise and just”??
Her job is not to be King Solomon and determine what is “wise and just”. She did not swear to only uphold the parts of the legal system she finds “wise and just”. She swore to uphold the law, period. Wisdom and justice are not hers to decide. If she wants to make those kinds of decisions … she is welcome to run for President.
How does this act by this misguided Obama appointee help Trump?
To start with, it gave him the first opportunity as President to utilize the one phrase more famously attached to Trump than “Make America Great Again”, and that is the phrase “You’re Fired!”. There is nothing more guaranteed to make his political base overjoyed than to see the very first time he gets a chance to say it to a Democrat. In part that is why he was elected. To tell the miscreants “You’re Fired!” and drain the swamp. Rightly or wrongly, many people are cheering all over the US.
Next, it helps Trump because her actions were so totally indefensible. If you are part of an organization and the new boss comes in, you have two ethical choices. Either choose to support the new boss, or resign. Either way is perfectly honorable. If she felt she could not morally support the policy of the organization that pays her salary, then she should tender her resignation.
But taking an indefensible position and betraying your sworn duty to uphold the law? Staying on and sabotaging the operation? Not on. Nobody likes that. Lead, follow, or get out of the way …
Next, this indefensibility of her actions makes her a perfect poster child for what happens if a government employee foolishly decides to take a political stand in opposition to the Administration. The next person will not be so bold, one hopes.
Next, it gave the President the chance to demonstrate what leadership looks like. No focus groups. No all-night agonizing. Her statement was released in the afternoon, and by the evening she was out on her aspirations.
Finally, it helps Trump because of the timing. The rollout of the Executive Order was clumsy and led to implementation problems. This led to Chuck Schumer weeping because a hundred people were detained but are now all released, and much clamor amongst the chatterati about how evil the President is.
But now, thanks to Sally Yates, what are the people talking about?
Best to all,