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?
“You’re Fired!”
Best to all,
w.
Skating Under The Ice 
Yet another problem caused by the delays in approving the Cabinet. I would be surprised to see her fired before Sessions is voted on (tomorrow??), but then I expect her to be fired almost instantly.
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Sorry, I thought I was clear. Trump fired her within hours of her statement. She’s gone.
w.
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Ahh, I read it that it gives him the opportunity to do so, but it wasn’t clear that he had done so on my first reading.
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These Dems just can’t stop from shooting themselves in the foot on a daily basis.
And the chattering classes will be frothing at the mouth in the morning shows tomorrow … and they’ll not have caught their breaths before The Donald announces his Supreme Court pick tomorrow night.
The hits just keep on coming!
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From the comments on Trump’s announcement:
Like I said …
w.
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As I posted in in a comment on WUWT maybe there;re trying to win a nomination for a Darwin Award.
http://www.darwinawards.com/
James Bull
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A touch of swamp clearance…hope it goes viral!
I never expect emotional stuff to be found in the area of law application.
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When I heard the news of Yates’ statement last evening I said “and tomorrow she will find herself the ex acting attorney general.” I was wrong; Trump didn’t wait even until morning.
Local commentator on the immigration order: Trump made several “rookie” mistakes. First he included green card holders. This had earlier been identified as an issue by several people (including Homeland Security directory Mike Kelly), but it was overridden at the whitehouse, allegedly by Steve Bannon.
Second he announced the order without first briefing Kelly and SecDef Mattis; Kelly found out when it was announced on the news while he was on the phone with the whitehouse trying to get clarification on the details. These are the guys who will direct the implementation; they need to be consulted. You can’t put a team in place to run operations and then bypass them on important decisions.
Alan Dershowitz said that Yates made a “serious mistake” and has “made a political decision, rather than a legal one.”
On the order itself, he said:
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“…and says that visas may not be denied on the basis of religion.”
Well the problem there is he did not ban anyone on the basis of religion, but on the basis of nationality by naming seven Countries. Had it been on the basis of religion then nobody from Pakistan or Egypt, for example, would be allowed in but this is not the case.
So we have ‘fake news’ from the MSM and from Trumpophobes
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“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.”
Example: If “the President finds that the entry” of red headed alien Danes “would be detrimental to the interests of the United States”, “he may” “suspend the entry” or apply “any restrictions he may deem to be appropriate”.
Don’t actually see where anyone could claim any legal standing against any action taken by the president, especially since he appears to be the singular authority according to the wording.
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Yates was going to lose her job later this week anyway when Jeff Sessions is confirmed as Attorney General, and was unlikely to be retained in a subordinate position. This may be a calculated way of going out with a splash to enhance her value in private practice. Before becoming a federal prosecutor in 1989, she was a partner at King & Spaulding in Atlanta.
This could actually be a win-win for both Trump and Yates.
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The more I think on it, the more plausible this becomes. There is obviously going to be a lot of legal work fighting the Trump administration and King & Spaulding is definitely a left-of-center firm. Yates’ high profile exit is likely to attract some of that litigation business.
I’m betting she rejoins King & Spaulding, possibly temporarily to position herself for a run at public office. Stay tuned.
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Yes, the Dems are seriously short of younger people to run for elective office. Miz Yates has just gotten herself a ton of free publicity, as simultaneously (in leftwing eyes) heroine and victim. Likely as not she knew the new President would give her the boot. But, as Willis says, he did himself some good, too. “You’re fired” is just what the Trump fans want to hear—as do I.
/Mr Lynn
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For the past six years Sally Yates has been promoting Obama administration policies on a government attorney’s salary (AG makes $205K). For at least the next four years she will be promoting those same policies at a much higher pay scale. She’s had 10 weeks to plan her return to private life and she’s made herself a household name. Well played Ms. Yates.
Somewhere, in a Democrat Bat-Cave, in the near future:
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That didn’t take long. Reports this afternoon are top Democrats in Georgia are urging Yates to run for Governor in 2018.
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Getting fired is one thing.
But she didn’t only disobey the order – she went out of her way to sabotage the implementation. And seems to have admitted it. Is there any way this action is criminal?
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Damn, that’s a cogent argument.
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Pingback: Sally Yates: American – American Clapback
Trump is an entrepreneur. He is messy, loud, and destructive. He does continuous A-B testing. he doesn’t mind failure. In some ways, he eats it like candy (cue Clint Eastwood in Any Which Way You Can). He and his people will make a lot of mistakes and they will fix those mistakes quickly. Most of all, he is going fast, very very fast. He has also adopted the Obama dense pack strategy of rolling out things so fast that the opposition cannot focus on anything long enough to stop it.
Best description of what he is doing and why continues to come from Scott Adams.
http://blog.dilbert.com/
I don’t think we’ve had an entrepreneur in the WH in our lifetime. This is something so far outside my political experience as to almost be alien. And I am enjoying every single minute of it. Cheers –
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She may have just forgot who she was working for? One must recall how many laws our past 2 AG’s were forced not to enforce.
Related and interesting from a few years ago.
http://www.redstate.com/diary/davenj1/2012/07/11/can-the-president-refuse-to-enforce-or-defend-a-law/
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>> (Alan Watt “)Second he announced the order without first briefing Kelly and SecDef Mattis; Kelly found out when it was announced on the news while he was on the phone with the whitehouse trying to get clarification on the details.”
Kelly said in a press conference that he had read at least two drafts of the order in the days before Trump signed it. He also said that he left the details up to his staff and the staff at DOJ who were working on it in the week leading up to the signing.
So I wonder where the report you describe came from…
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Local commentator Erik Ericson. His sources are usually good (he predicted Neil Gorsuch as the SCOTUS pick last week).
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I have to agree that Yates is just establishing her leftist credentials before going back to a lucrative private practice.
What’s infuriating me is that MSM and the Democrats (as well as Republicans and even Fox News) are dropping the word TEMPORARY from the description of what’s been done. Hollywood? Not even worth mentioning anymore since they’re all mostly comprised of idiots.
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ELB*
Well …………. a couple of things.
Willis: “……………………..my first thought was, if she didn’t exist, Trump would certainly want to invent her.
She’s done him perhaps the largest favour any Democrat has done in his young Presidency. Let me count the ways …” (interesting that you should quote a famous love poem in this context!!)
Alan Watt: “Yates was going to lose her job later this week anyway when Jeff Sessions is confirmed as Attorney General, and was unlikely to be retained in a subordinate position. This may be a calculated way of going out with a splash to enhance her value in private practice”
AW got it right. Far from doing the lovely Mr Trump a favour, he has done her a favour. She has gone with a bang, not a whimper, firmly stamping her image on the public conscience, and making a clear statement of her concern about Trump’s actions..
So that’s not a stupid move. Nor is it a gift to Trump. Quite to the contrary, by issuing the Executive order Trump gave her a great opportunity to go out with a bold statement of her position.
And Willis: “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.” (Your emphasis)
But then we hear – Leon Brozyna: “……… and they’ll not have caught their breaths before The Donald announces his Supreme Court pick tomorrow night.”
Presumably Trump will not select any judge unless he is confident that they will pass judgments in accordance with his policies. So the implication here is that the decisions of the Supreme court are influenced by the political leanings of the judges. That doesn’t sound like the fair impartial system of justice we are supposed to rely on. That is moving from impartial interpretation of the law to a biased opinion of what the law should be.
That sounds dangerously close to what you all just slammed Ms Yates for doing
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There are currently two families of thought on the Constitution right now.
One is that should be viewed as a document who’s meaning was fixed at the time it was written (subject to amendment via the formal amendment process), and you have to view it as such, in the context of the time it was written in.
The other is that it is a “Living Document” who’s meaning changes over time based on how society changes, without any amendments needed for these changes to take place.
In general, the Left believes that it’s a living document, while the Right believes that it’s meaning can only be changed via the formal process.
For those of us on the Right, we view “Activist Judges” as a problem, they are interpreting the law to achieve what they think are the “correct” results. The Left loves such Judges, as that is how they have pushed through various “rights” on the nation (gay marriage and abortion are two big ones, but there have been many others as well)
The Right tends to agree with Neil Gorsuch when he says that a Judge who is happy with the outcomes of all their cases is probably a bad judge who is twisting the law to achieve what they think is the “right” outcome rather than following the law and deciding the case based on what the law says, rather than what they think it should say.
Prior to Row V Wade, the Supreme Court appointments were not as much of a big deal, because they pretty much stuck to interpreting the law (and the Constitution in deciding if a law violates it or not), but even many lawyers from the left who are in favor of abortion will agree that RvW was bad case law and a big stretch. Since around that point, the Left has been turning to the courts to get things done that aren’t laws passed by congress.
As a result, Supreme Court appointments are now “High Stakes” items.
Both sides have a lot of people who create “tests” of “how would you rule on this issue”, and good Judges (IMHO) will respond that it will depend on the particular case. But you can look at how a Judge rules on many cases over time, and especially the justifications for their rulings and see a clear pattern of how they decide cases.
From everything I’ve heard, Judge Gorsuch does exactly what he says he does, he looks at how the existing rules apply to the case in front of him, rather than deciding which result is “best for society” and finding/twisting the law to achieve that result. When there is a question about what something in the Constitution means, he looks at what that verbage meant in the late 1700s, both in how the language was used, and what was written by the founders at the time. This is as opposed to what those same words may mean if they were written today (especially if they were written today by someone who is Left leaning)
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Or stated by Billy C.?
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Colin Dunlop February 1, 2017 at 12:00 pm
Colin, always good to hear from you.
Did Ms. Yates give a gift to Trump? Assuredly. He got to say “You’re Fired” and his base loved it.
Did Trump also give her an opportunity? Absolutely, you’re 100% correct about that … but she blew it. She indeed had a great opportunity to resign in an honorable fashion, and she could have made her bold statement just as loudly by resigning.
However, she didn’t do that. Instead, she publicly betrayed the organization she worked for.
Now, there may be people out there foolish enough to hire her after such a betrayal. Actually, I’m quite certain there are people out there like that. I call them by their technical name … “fools”. They are fools because if someone is a traitor to their own organization, they will have no problem being a traitor to your organization … my advice is that whoever hires her should sleep with one eye open and not turn their back on her.
Not true at all. If Trump wanted someone who will “pass judgments in accordance with his policies”, Judge Goresuch is the last person he should appoint. Goresuch has been very clear that he will rein in either the Legislature or the President if they get out of line.
Again, not true for Goresuch. In one of the most interesting statements ever on the judicial system, Goresuch famously said that a judge who is happy with all of his rulings is a bad judge. This means that he will NOT follow his politics, he will follow the law even when he disagrees with the law …
What I slammed Ms. Yates for doing is for putting her politics ahead of her job and her sworn duties. I don’t want anyone in the Judicial system doing that, including the Supremes … and I’m glad that Judge Goresuch has specifically said he follows the law and not his politics or his heart.
Best to you and yours, and thanks for your comment,
w.
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Goodness, Willis,
The more of your beautifully crafted words I read, the more I mutter to myself,, “At last, a person who thinks very much like I do and arrives at similar conclusions.”
Not wanting to attract any odd inferences from that admission, it is merely the way it is.
Strange, though, that I have not encountered many others about whom the same was said.
Interesting. A lot in common with your formative years experiences.
Geoff.
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A parallel comes to mind. Some time ago, California passed Proposition 8. Its full text was:
Section I. Title
This measure shall be known and may be cited as the “California Marriage Protection Act.”
Section 2. Article I. Section 7.5 is added to the California Constitution, to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.
The constitutionality of the California Constitution so modified was immediately challenged in courts. The Attorney General Kamala Harris refused to defend the Constitution, and Section 7.5 was deleted. Governor Jerry Brown was very happy with Ms. Harris’s performance.
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