Yates Criticized for Conflating Public Policy and Law

[Yates] says that [the White House Office of Legal Counsel] did not “address whether any policy choice embodied in an Executive Order is wise or just.” True, that is not OLC’s job. But nor is it the Attorney General’s—at least not if the President has decided that the policy choice is wise and just. The Attorney General can personally advise the President about an EO’s wisdom and justness. And the Attorney General can decide to resign if she thinks the President is pursuing a policy so unwise and unjust as to be morally indefensible. But an Attorney General does not typically (I cannot think of a counterexample offhand) refuse to defend an Executive Order in court because she disagrees with the policy basis for the EO. … The Attorney General has discretion to make some DOJ decisions based on what she thinks is just and right. But in the context of deciding whether to defend a presidential EO, the question for Yates is reasonable legality, not what is just and right.

This is holdover heroism. It’s so easy to be a heroine when you’re not appointed by this president and when you’re on the other side. She made a serious mistake. I think what she should have done is done a nuanced analysis of what parts of the order are constitutional, what parts are in violation of the statute, what parts are perfectly lawful. There’s an enormous distinction between green card holders on the one hand, people who are in the country and have to be thrown out on the second hand, and people who are simply applying to get visas. There is also a distinction between what’s constitutional, what’s statutorily prohibited, what’s bad policy—this is very bad policy—but what’s lawful. And I think by lumping all of them together, she has made a political decision, rather than a legal one.