Executing Attorneys General and executive orders

1. Gary J. Schmitt

The lead headline in Tuesday morning’s Washington Post screamed “Acting attorney general fired over ban.” Technically, the Acting Attorney General Sally Yates, a holdover from the Obama administration, was not fired “over [the immigration] ban.” She was canned because she refused to have the Justice Department defend the White House’s executive order temporarily putting a hold on entry into the US for citizens and refugees from seven Muslim-dominant countries.

President Donald Trump signs an executive order to impose tighter vetting of travelers entering the United States, at the Pentagon in Washington, January 27, 2017. REUTERS/Carlos Barria.

Although Ms. Yates stated she had qualms about the legality of the order, she did not in fact argue that the EO was illegal and admitted that the Justice Department’s Office of Legal Counsel had agreed that the order was “lawful on its face and properly drafted.” Far more important to her, as is clear from her own statement, was whether the executive order was “wise or just” and her view that the department must not only divine what is legal but “always seek justice and stand for what is right.” Since Ms. Yates judged the order to be neither wise nor just, she chose to have the department not defend the EO as it was being challenged in various courts.



Of course, that is not the Justice Department’s job, nor is it the attorney general’s responsibility to stand in the way of an executive action that has been judged legal, even if flawed policy. An attorney general can certainly give advice about the wisdom of any particular order, and even suggest the legal difficulties it might give rise to, but taking on the role of independent “censor” is not part of our legal or constitutional heritage. There is a reason the Constitution vests “the executive power” in a single person, the president. To read it otherwise is to invite the kind of chaos in executing the nation’s laws that the founders were determined to avoid. Ms. Yates’ correct path was to resign if she felt as strongly as she did about the ban. However, she didn’t and, in failing to do so, reminded everyone of just how partisan and “imperial” the Obama Justice Department had become.
One begins to wonder if there is anyone in the White House who has actually spent anytime reading Article II of the Constitution, outlining the president’s “powers and duties,” and thought through what it means for the president to “take care that the laws be faithfully executed.
But the Trump White House did itself no favors when it released a statement labeling Ms. Yates “an Obama Administration appointee who is weak on borders and very weak on illegal immigration” at the same time they announced her firing—in essence conflating the key constitutional issue of the executive line of authority with a dispute with her over policy. One begins to wonder if there is anyone in the White House who has actually spent anytime reading Article II of the Constitution, outlining the president’s “powers and duties,” and thought through what it means for the president to “take care that the laws be faithfully executed.”
If they had, they might also have understood to “faithfully” execute does not merely mean to “see” executed. It also conveys a responsibility to have the country’s laws well administered. Conjuring up an executive order of this significance without sufficiently seeking (as apparently was the case) the advice of any of the cabinet members and departments they represent—Homeland Security, Defense, or State— and whose job it would be to implement and deal with its manifestly complex implications is irresponsible behavior on the part of the chief executive.
There are two features to the unitary executive that the Framers believed were beneficial to good governance. First, unity provided decisiveness, and, second, it located clear responsibility for the quality of administration. Over the past few days, we’ve seen both challenged, with partisans of the previous and current administration ignoring one or the other of these constitutional points of order.
Update (February 1, 2017): Previous news report said the relevant departments were not involved in the construction of the executive order. However, yesterday, DHS Secretary John Kelly said he had seen earlier drafts but seemed to leave open just how involved he and his deputies were when it came to the final wording and issuance of the order. Certainly, the lack of guidance by DHS to its subordinate agencies on the order’s implementation and the resulting confusion suggest that the coordination with the White House was not what it should have been.