This column by ACRU Policy Board member Hans von Spakovsky was published January 31, 2017 by The Daily Signal.
The kerfuffle on Monday night over former Deputy Attorney General Sally Yates’ statement criticizing President Donald Trump’s executive order requiring better screening of travelers from failed countries that are the biggest sources of terrorists in the world shows the difference between a Justice Department guided by politics versus the rule of law.
In the statement that Yates circulated inside the Justice Department, she said the department would not defend the executive order against the proliferation of lawsuits being filed against it because she was not “convinced” that that it was “legally defensible.”
Furthermore, she claimed that in addition to her legal responsibilities, she has an obligation to “stand for what is right” and she obviously does not believe this executive order is “right.”
But Yates is wrong.
As the deputy attorney general and acting attorney general, her obligation is to defend federal law and actions taken by the president pursuant to the law when there is a valid basis for doing so, regardless of whether or not she agrees with the president from a public policy standpoint or thinks his action is the “right” thing to do.
There is no question that the president’s executive order is eminently defensible and that he is entitled to have the Department of Justice defend it in court.
In his executive order, the president cites a provision of federal immigration law, 8 U.S.C. §1182(f), which gives him almost unlimited discretion to suspend “the entry of any aliens or of any class of aliens into the United States” if, in his judgment, their entry “would be detrimental to the interests of the United States.”
Since Congress has absolute authority under the Constitution to determine our immigration policy, its delegation to the president of this authority is perfectly constitutional.
Yates’ decision appears to have been primarily motivated by politics, not law, which, no doubt, prompted the action Trump took in firing her almost immediately.
The constitutionality and legality of the executive order is bolstered by the fact that, as even Yates was forced to acknowledge, the order was reviewed by the Justice Department’s Office of Legal Counsel, which concluded that it was “lawful on its face and properly drafted.”
It has long been the job of the Office of Legal Counsel to analyze laws passed by Congress and executive orders issued by the president to determine their constitutionality and determine whether they can be defended in the courts when they are challenged.
As its own website explains, it is Office of Legal Counsel “by delegation from the attorney general” that “provides authoritative legal advice to the president.”
So Yates’ claim that the immigration executive order is legally indefensible flies in the face of the Office of Legal Counsel’s legal opinion — which constitutes the Justice Department’s legal opinion — that the president’s executive order is, indeed, “lawful.”
As a statement released by the White House said, by her refusal to carry out her duty to defend the executive order, Yates “betrayed the Department of Justice.”
It is clear from her statement that Yates took her action because she doesn’t like the executive order as public policy. As the White House statement says, that is because she “is weak on borders and very weak on illegal immigration.”
As former Justice Department official Jack Goldsmith says, if Yates didn’t like this executive order, the proper course for her would be to resign — not tell Justice Department lawyers that they would not be allowed to defend a lawful action of the president.
There is no doubt that Yates is going to be portrayed as a martyr by progressives and the media who don’t like the executive order because she was fired. But she allowed her political views to interfere with her basic professional obligation to enforce the rule of law and to defend an executive order issued by the president that her own department had already concluded was lawfully issued.
She failed in her duty as the acting attorney general and is certainly not a martyr.
Yates has also provided the final confirmation of how politicized the Justice Department became under President Barack Obama. It is going to take a long time and a lot of work for Attorney General-designate Jeff Sessions to restore the department’s professionalism and its reputation.