6 ms·

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 attor

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?
  - mordant 10y ago
    >The law passed by Congress in this case states that the immigration department is not allowed to discriminate based by country of origin. See Section 212(f) of the Immigration and Nationality Act: "(f) 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." Case closed.
    - ubernostrum 10y ago
      8 USC § 1152(a)(1)(a): Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence. Paragraph 2 does not provide grounds for Trump's order. It sets a cap on the percentage of visas which can go to any foreign state in a given year, but does not allow blanket bans on a particular state. 1101(a)(27) does not provide grounds for Trump's order (it defines a class of "special immigrants" for reference elsewhere). 1151(b)(2)(A)(i) does not provide grounds for Trump's order (it provides a definition for "immediate relatives"). 1153 does not provide grounds for Trump's order (it defines an allowable scheme of preferential treatment to certain classes of immigrants, such as the highly-skilled). So Trump did not have the legal authority to suspend issuance of visas on the basis of national origin. Attempting to do saw was a violation of applicable federal immigration law. His executive order was thus unlawful, and it was correct to refuse enforcement.
      - camiller 10y ago
        8 USC §1182(f) which states in part: "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." §1152 and §1182 would seem to be at odds with each other. But no Section 1182(f) plainly and sweepingly authorizes the president to issue temporary bans on the entry of classes of aliens for national-security purposes. This is precisely what President Trump has done. In fact, in doing so, he expressly cites Section 1182(f), and his executive order tracks the language of the statute (finding the entry of aliens from these countries at this time “would be detrimental to the interests of the United States”). Read more at: http://www.nationalreview.com/article/444371/donald-trump-executive-order-ban-entry-seven-muslim-majority-countries-legal http://www.nationalreview.com/article/444371/donald-trump-ex...
  - camiller 10y ago
    I think the law the president is relying on is 8 USC §1182(f) which states in part: "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."

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?
- mordant 10y ago
  >The law passed by Congress in this case states that the immigration department is not allowed to discriminate based by country of origin. See Section 212(f) of the Immigration and Nationality Act: "(f) 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." Case closed.
  - ubernostrum 10y ago
    8 USC § 1152(a)(1)(a): Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence. Paragraph 2 does not provide grounds for Trump's order. It sets a cap on the percentage of visas which can go to any foreign state in a given year, but does not allow blanket bans on a particular state. 1101(a)(27) does not provide grounds for Trump's order (it defines a class of "special immigrants" for reference elsewhere). 1151(b)(2)(A)(i) does not provide grounds for Trump's order (it provides a definition for "immediate relatives"). 1153 does not provide grounds for Trump's order (it defines an allowable scheme of preferential treatment to certain classes of immigrants, such as the highly-skilled). So Trump did not have the legal authority to suspend issuance of visas on the basis of national origin. Attempting to do saw was a violation of applicable federal immigration law. His executive order was thus unlawful, and it was correct to refuse enforcement.
    - camiller 10y ago
      8 USC §1182(f) which states in part: "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." §1152 and §1182 would seem to be at odds with each other. But no Section 1182(f) plainly and sweepingly authorizes the president to issue temporary bans on the entry of classes of aliens for national-security purposes. This is precisely what President Trump has done. In fact, in doing so, he expressly cites Section 1182(f), and his executive order tracks the language of the statute (finding the entry of aliens from these countries at this time “would be detrimental to the interests of the United States”). Read more at: http://www.nationalreview.com/article/444371/donald-trump-executive-order-ban-entry-seven-muslim-majority-countries-legal http://www.nationalreview.com/article/444371/donald-trump-ex...
- camiller 10y ago
  I think the law the president is relying on is 8 USC §1182(f) which states in part: "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."