10 ms·

What I find worrying is she ordered that the DOJ not support the President without any clear conviction that the law was unconstitutional, it smelled of an enti

by TenOhms 10y ago

What I find worrying is she ordered that the DOJ not support the President without any clear conviction that the law was unconstitutional, it smelled of an entirely politically motivated action not grounded in US law.

siidooloo 10y ago
She said that she felt the order was illegal. Should she follow orders and obey something she thinks is illegal?
- cookiecaper 10y ago
  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).
  - davidw 10y ago
    She signed an oath to defend the constitution, not an oath of loyalty to Trump.
    - cookiecaper 10y ago
      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.
      - throwaway5752 10y ago
        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?
        cookiecaper 10y ago
        >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 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. [0] https://en.wikipedia.org/wiki/Executive_Order_6102 https://en.wikipedia.org/wiki/Executive_Order_6102
- deleted 10y ago
  [deleted]
zardeh 10y ago
That's interesting. I totally see this as a valid argument (and I don't disagree that this might be politically motivated on the judge's part). However, it seems to me that >any clear conviction that the law was unconstitutional is the wrong way of going about it. I would think you'd want to be pretty darn sure that the actions you were carrying out were constitutional before doing them. That is, I'd much rather people not enforce a law that might be unconstitutional, but isn't, than enforce a law that is unconstitutional. Err on the side of caution.
- autotypo 10y ago
  Unfortunately it never actually works that way, and we have to fight tooth and nail in courts to overturn unconstitutional laws.
wavefunction 10y ago
The decision to prosecute a defendant or not (or defend a statute, or not) is at the discretion of the prosecutor, barring some sort of statutory requirement. The President isn't a king, whose orders are to be followed regardless of the Constitution or prevailing law. Both the President and the AG serve at the pleasure of the People of the United States, and Trump is about to find that out the hard way.
- gm-conspiracy 10y ago
  I thought the FBI director recommends to the AG whether to pursue charges, no?
  - Avenger42 10y ago
    Even in such a case, the AG should be free to ignore the recommendation and say "sure, we've got enough evidence, but we're not going to pursue it". For example, if the charge is minor enough, or if the optics of it look bad, or the person in question were already being prosecuted by a different office, they could tell the FBI Director they weren't going to bother, and then go hold a press conference to explain why (so that the FBI Director doesn't beat you to the press to say "we've got them dead to rights and they won't prosecute for [X] reasons!").
- LordKano 10y ago
  Both the President and the AG serve at the pleasure of the People of the United States, and Trump is about to find that out the hard way. Trump has the support of roughly half of the country. Regardless of how loud the opposition is, don't confuse their passion for widespread support.
  - mkaziz 10y ago
    Slightly less than half the country _that voted_* this past election. That's not close to half the country
    - 10y ago
nikdaheratik 10y ago
Except that it isn't a law. It's an executive order. The President isn't a dictator and doesn't get to rule any department by decree. If the secretary feels that the order is illegal, they can refuse to follow it, and get forced to resign, but then the President would still need to find someone else to follow the order.
- walljm 10y ago
  The executive order was backed by the law though. The President does have the powers he exercised, at least, near as I can tell from the US Code cited in the order. I don't necessarily like the order, or how it was carried out, but I'm not sure her actions were justified on the grounds she cited. https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states https://www.whitehouse.gov/the-press-office/2017/01/27/execu... and https://www.law.cornell.edu/uscode/text/8/chapter-12/subchapter-II/part-II https://www.law.cornell.edu/uscode/text/8/chapter-12/subchap...
  - mikeash 10y ago
    Aren't many of the objections to the order based on constitutional concerns like depriving people of due process? That would override anything in the US Code.
    - belovedeagle 10y ago
      Get real. The objections to the order are based exclusively on whether there's an (R) or a (D) next to the President's name. Nothing more. Incredible to see how many people suddenly "care" about the Constitution after 8 years of Obama wiping his feet on it.
      - mikeash 10y ago
        Just to clarify, are you an (R) who is OK with this stuff? Or are you just more upset about consistency than rights abuses?
ouid 10y ago
It was an executive order in violation of law. That seems like exactly the kind of discretion that an AG has and should have.

by TenOhms 10y ago

siidooloo 10y ago

She said that she felt the order was illegal. Should she follow orders and obey something she thinks is illegal?

cookiecaper 10y ago
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).
- davidw 10y ago
  She signed an oath to defend the constitution, not an oath of loyalty to Trump.
  - cookiecaper 10y ago
    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.
    - throwaway5752 10y ago
      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?
      - cookiecaper 10y ago
        >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 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. [0] https://en.wikipedia.org/wiki/Executive_Order_6102 https://en.wikipedia.org/wiki/Executive_Order_6102
deleted 10y ago
[deleted]

zardeh 10y ago

That's interesting. I totally see this as a valid argument (and I don't disagree that this might be politically motivated on the judge's part). However, it seems to me that >any clear conviction that the law was unconstitutional is the wrong way of going about it. I would think you'd want to be pretty darn sure that the actions you were carrying out were constitutional before doing them. That is, I'd much rather people not enforce a law that might be unconstitutional, but isn't, than enforce a law that is unconstitutional. Err on the side of caution.

autotypo 10y ago
Unfortunately it never actually works that way, and we have to fight tooth and nail in courts to overturn unconstitutional laws.

wavefunction 10y ago

The decision to prosecute a defendant or not (or defend a statute, or not) is at the discretion of the prosecutor, barring some sort of statutory requirement. The President isn't a king, whose orders are to be followed regardless of the Constitution or prevailing law. Both the President and the AG serve at the pleasure of the People of the United States, and Trump is about to find that out the hard way.

gm-conspiracy 10y ago
I thought the FBI director recommends to the AG whether to pursue charges, no?
- Avenger42 10y ago
  Even in such a case, the AG should be free to ignore the recommendation and say "sure, we've got enough evidence, but we're not going to pursue it". For example, if the charge is minor enough, or if the optics of it look bad, or the person in question were already being prosecuted by a different office, they could tell the FBI Director they weren't going to bother, and then go hold a press conference to explain why (so that the FBI Director doesn't beat you to the press to say "we've got them dead to rights and they won't prosecute for [X] reasons!").
LordKano 10y ago
Both the President and the AG serve at the pleasure of the People of the United States, and Trump is about to find that out the hard way. Trump has the support of roughly half of the country. Regardless of how loud the opposition is, don't confuse their passion for widespread support.
- mkaziz 10y ago
  Slightly less than half the country _that voted_* this past election. That's not close to half the country
  - 10y ago

nikdaheratik 10y ago

Except that it isn't a law. It's an executive order. The President isn't a dictator and doesn't get to rule any department by decree. If the secretary feels that the order is illegal, they can refuse to follow it, and get forced to resign, but then the President would still need to find someone else to follow the order.

walljm 10y ago
The executive order was backed by the law though. The President does have the powers he exercised, at least, near as I can tell from the US Code cited in the order. I don't necessarily like the order, or how it was carried out, but I'm not sure her actions were justified on the grounds she cited. https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states https://www.whitehouse.gov/the-press-office/2017/01/27/execu... and https://www.law.cornell.edu/uscode/text/8/chapter-12/subchapter-II/part-II https://www.law.cornell.edu/uscode/text/8/chapter-12/subchap...
- mikeash 10y ago
  Aren't many of the objections to the order based on constitutional concerns like depriving people of due process? That would override anything in the US Code.
  - belovedeagle 10y ago
    Get real. The objections to the order are based exclusively on whether there's an (R) or a (D) next to the President's name. Nothing more. Incredible to see how many people suddenly "care" about the Constitution after 8 years of Obama wiping his feet on it.
    - mikeash 10y ago
      Just to clarify, are you an (R) who is OK with this stuff? Or are you just more upset about consistency than rights abuses?

ouid 10y ago

It was an executive order in violation of law. That seems like exactly the kind of discretion that an AG has and should have.