Sally Yates is correct about President Trump’s immigration order.
It is unwise and unjust to bar people who have proper visas from entering the country, and it is unwise and unjust to suspend our refugee program which hasn’t shown any signs of porousness.
We made this argument in our recent editorial. Yates is a lawyer who has strong feelings on this matter, and she now has some free time, so we invite her to write an op-ed on the matter. But as of yesterday, when Yates wrote a letter declaring the Justice Department wouldn’t enforce the executive order, her job was acting attorney general. It was her job to enforce the law, regardless of her opinion on the law’s wisdom.
Instead of doing her job, she went the same route as Rowan County Clerk Kim Davis, who refused to issue marriage certificates to same-sex couples. Taking a stand on conscience is great. But if we are to be a nation of laws, agents of the government need to enforce the law, not their own consciences.
The exception to this rule is if the order from on high is unlawful. If Yates believed that was the case, she should have made that argument in her letter barring her underlings from enforcing it.
She granted in the letter that the order was found lawful on its face by DOJ — specifically by DOJ’s Office of Legal Counsel. However, she states, OLC hasn’t determined whether the order is “wise and just.” (Jonathan Adler addresses this all here.)
Judging the wisdom and justice of a policy isn’t OLC’s job, of course. It’s also not the attorney general’s job.
Yates has every right (even a duty) to refuse to follow or enforce unlawful orders. But Yates never makes an argument — or even asserts — that the immigration order is unlawful. She never cites a law it breaks. Instead, she merely asserts: “I [am not] convinced that the Executive Order is lawful.”
Federal law gives very broad authority to the president to halt certain classes of immigration:
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.
Trump cited that law in his EO. Yates never explained why it doesn’t apply.
Also tellingly, here’s a word that never appeared in her letter: “Constitution.” Her lode star: “to always seek justice and stand for what is right.”
The closest she comes to hinting at her reasoning as to ignoring this executive order is referring to “statements” made by the administration that “may bear on its purpose.” One could divine from this passage that she believes Trump’s EO has a discriminatory purpose, thus making it illegal.
Jack Goldsmith makes the relevant observation here: “But Yates does not say she has concluded that, and it is pretty clear from the context of her letter … that she has not ruled out that there are reasonable arguments in support of the EO.”
As a result, Yates left it at: “I am not convinced” the EO is lawful.
Imagine an executive branch where every official had to be convinced that a rule was lawful, and also needed proof a rule was both wise and just, before she would do her job.
We’ve seen a public official do something like that recently, and elite culture didn’t quite see her as a hero. Yet Yates is already being trumpeted as a hero. A martyr of the Trump administration.
Because Yates, substantively, is on the same side as elite opinion (as am I), and because Trump has authoritarian tendencies and demeanor, her hero image will be almost invincible. But a government in which more people acted like Yates would be a government of people rather than laws.
Timothy P. Carney, the Washington Examiner’s senior political columnist, can be contacted at [email protected]. His column appears Tuesday and Thursday nights on washingtonexaminer.com.
