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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 law

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
nikdaheratik 10y ago
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.
- cookiecaper 10y ago
  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] [0] http://www.yalelawjournal.org/note/executive-orders-in-court http://www.yalelawjournal.org/note/executive-orders-in-court
  - nikdaheratik 10y ago
    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.
    - cookiecaper 10y ago
      >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?
pcwalton 10y ago
> There is nothing in Trump's EO that singles anyone out by religious affiliation or background. This is false. It has explicit exceptions for "religious minorities". Wikipedia: "After the resumption of USRAP, refugee applications will be prioritized based on religion-based persecutions only in the case that the religion of the individual is a minority religion in that country."
- cookiecaper 10y ago
  Yes, you're correct. My language was imprecise in that I was referring specifically to the orders limiting entry of foreign nationals, and also specifically referring to singling out specific religious affiliations rather than religious background as a general principle. But yes, the order does also contain an instruction to prioritize refugees seeking asylum from generalized religious persecution, and states that the refugee's claim should only be prioritized if they are legitimately a religious minority (which seems more like an implicit implementation detail). That section of the order is completely unrelated to the travel ban on foreign nationals. I appreciate the correction and I will attempt to keep the language precise moving forward. One other note, it would be best to link to primary sources next time. The full text of the EO is available at 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....
  - zAy0LfpBZLC8mAC 10y ago
    > and states that the refugee's claim should only be prioritized if they are legitimately a religious minority WTF does religion-based persecution have to do with "legitimately [being] a religious minority"? You are aware that people are persecuted for questioning doctrine of the religion that they nominally belong to? That people are persecuted for being gay on religious grounds, even if it's their own religion? If you seriously believe what you wrote, you simply fell for the superficial literal meaning of the words. The actual, and quite obviously intentional, effect of banning entry from muslim-majority countries and then making exceptions based on belonging to a minority religion is discrimination based on religion.
ubernostrum 10y ago
I know of a credible argument that this executive order was inconsistent with federal immigration law: https://news.ycombinator.com/item?id=13529036 https://news.ycombinator.com/item?id=13529036
deleted 10y ago
[deleted]

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

nikdaheratik 10y ago

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.

cookiecaper 10y ago
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] [0] http://www.yalelawjournal.org/note/executive-orders-in-court http://www.yalelawjournal.org/note/executive-orders-in-court
- nikdaheratik 10y ago
  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.
  - cookiecaper 10y ago
    >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?

pcwalton 10y ago

> There is nothing in Trump's EO that singles anyone out by religious affiliation or background. This is false. It has explicit exceptions for "religious minorities". Wikipedia: "After the resumption of USRAP, refugee applications will be prioritized based on religion-based persecutions only in the case that the religion of the individual is a minority religion in that country."

cookiecaper 10y ago
Yes, you're correct. My language was imprecise in that I was referring specifically to the orders limiting entry of foreign nationals, and also specifically referring to singling out specific religious affiliations rather than religious background as a general principle. But yes, the order does also contain an instruction to prioritize refugees seeking asylum from generalized religious persecution, and states that the refugee's claim should only be prioritized if they are legitimately a religious minority (which seems more like an implicit implementation detail). That section of the order is completely unrelated to the travel ban on foreign nationals. I appreciate the correction and I will attempt to keep the language precise moving forward. One other note, it would be best to link to primary sources next time. The full text of the EO is available at 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....
- zAy0LfpBZLC8mAC 10y ago
  > and states that the refugee's claim should only be prioritized if they are legitimately a religious minority WTF does religion-based persecution have to do with "legitimately [being] a religious minority"? You are aware that people are persecuted for questioning doctrine of the religion that they nominally belong to? That people are persecuted for being gay on religious grounds, even if it's their own religion? If you seriously believe what you wrote, you simply fell for the superficial literal meaning of the words. The actual, and quite obviously intentional, effect of banning entry from muslim-majority countries and then making exceptions based on belonging to a minority religion is discrimination based on religion.

ubernostrum 10y ago

I know of a credible argument that this executive order was inconsistent with federal immigration law: https://news.ycombinator.com/item?id=13529036 https://news.ycombinator.com/item?id=13529036

deleted 10y ago

[deleted]