they are free to challenge all they care to, the order was legal and there are many precedents to back it up.
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It's her job to uphold the Constitution of the United States and while the President can clearly fire her she works for us, the People. He then went down the list looking for someone who would do what he said. Dana Boente is Trumps Robert Bork.
bonnie
I play a nice person on twitter.
My understanding is that the EO was not vetted by justice in advance. Could totally be wrong, but I can't find anything to support this assertion.
the problem is that the EO was vetted by underlings in HER DOJ. she chose to ignore that fact and proceeded to make judgement based on her political beliefs and not the law or constitution. that is dereliction of duty or incompetence. hence she was removed. thanks for playing
bonnie
I play a nice person on twitter.
Okay, I found this. Easy to see why I believe it has not been vetted as past orders, and easy to see why you believe it was legal. We will remain in disagreement.
Justice Department Said Trump’s Refugee Ban Is Legal. They Didn’t Say It Was A Good Idea. | The Huffington Post
"
A Justice Department spokesman told The Huffington Post on Monday that that Office of Legal Counsel has traditionally answered the “narrow question” of whether executive orders are lawful on their face and properly drafted. The spokesman said that continues to be the case in the first 10 days of the Trump administration.
“OLC has continued to serve this traditional role in the present administration, and to date has approved the signed orders with respect to form and legality,” the spokesman said.
But here’s the key part of the statement: “OLC’s legal review has been conducted without the involvement of Department of Justice leadership, and OLC’s legal review does not address the broader policy issues inherent in any executive order.”
In other words, the Office of Legal Counsel approved the language and basic legality of the executive orders, but did not look at the broader potential impact and potential complications. And DOJ leadership, which in this case means acting Attorney General Sally Yates and others, were not involved in the process at all."
stopcrazypp
Well-Known Member
The text itself, supplementary clarifications the administration added later (but not in the text itself), and the actual implementation has to be factored in too.
An example clarification: the DHS initially interpreted it to not apply to green card holders, the administration said it did, then in response to the outrage they backtracked. Example on implementation: deported people were not given the chance for a hearing or to speak to a lawyer, which may violate due process. In this case, the court may order that the order be amended to clarify these ambiguities in order to remain constitutional.
Edit: @bonnie quoted parts that pretty much shows the issue. The OLC only reviewed the text of the order itself on its face. It does not cover the other parts I mentioned which will be brought up in the court challenge.
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nobody in the wh cares whether the DOJ thinks the EO was a good idea or not, there job is not to make or implement policy their job is just to comment as to if it is legal or not.
which brings us back to the acting AG not doing her job, instead she attempted to make a political statement versus acting on the law.
which brings us back to the acting AG not doing her job, instead she attempted to make a political statement versus acting on the law.
Spicer made several statements of "alternate fact" in the press conference today. First he backed up Trump that the execution of the EO was "going nicely" and even you would know that's not true. Second he said DHS signed off on it but in General Kelly's press conference (after Spicer) he said he only saw "early drafts" not the final product. In fact the DHS people who did look at drafts didn't sign off because of the green card wording and concerns of constitutionality (see my comments re the Federal judges upthread for context). They were overruled by Bannon. Spicer said "some people" from OLC (Office of Legal Compliance of DOJ) signed off on it but so far they haven't proved that nor is that the way the process is supposed to work. So from a real fact perspective thats strike three for you.
5 min at a Constitutional Law site: EO's get followed until stopped by a new law in Congress or the Supreme Court. The Attorney General has no say in them. There is nothing specific about EOs in the Constitution except:
According to the Congressional Research Service, there is no direct “definition of executive orders, presidential memoranda, and proclamations in the U.S. Constitution, there is, likewise, no specific provision authorizing their issuance.”
But Article II of the U.S. Constitution vests executive powers in the President, makes him the commander in chief, and requires that the President “shall take Care that the Laws be faithfully executed.” Laws can also give additional powers to the President.
While an executive order can have the same effect as a federal law under certain circumstances, Congress can pass a new law to override an executive order, subject to a presidential veto.
Example: We had an EO that threw Americans into concentration camps without legal recourse. Since neither Congress or the Court did anything, it stood.
According to the Congressional Research Service, there is no direct “definition of executive orders, presidential memoranda, and proclamations in the U.S. Constitution, there is, likewise, no specific provision authorizing their issuance.”
But Article II of the U.S. Constitution vests executive powers in the President, makes him the commander in chief, and requires that the President “shall take Care that the Laws be faithfully executed.” Laws can also give additional powers to the President.
While an executive order can have the same effect as a federal law under certain circumstances, Congress can pass a new law to override an executive order, subject to a presidential veto.
Example: We had an EO that threw Americans into concentration camps without legal recourse. Since neither Congress or the Court did anything, it stood.
Read it again I said OLC which is DOJ. DHS was mentioned because they identified the legal issues but were not listened to. Perhaps if you read more carefully you'll have a better grasp of the facts.
I thought Trump's Robert Bork was going to be announced later this evening?
stopcrazypp
Well-Known Member
You still don't really get the point. As AG she had a duty to uphold the constitution even if it meant disobeying orders from the president. She was specifically grilled on this point by a Republican senator during her confirmation hearing. She is just upholding that duty and promise.
Of course it will be the court that will decide later on about the constitutionality, but there was nothing improper about her intentions and actions if she genuinely felt the order was unconstitutional and indefensible. If she was doing this just because she dislikes Trump that is a different matter, but that does not appear to be the case here.
She's an attorney. She makes decisions based on law. She does not get to improvise or interpret. That is for judges. If she did not have a law or decision she could specifically point to (she didn't), she has to follow guidance, which... would be the EO.
Canuck
Well-Known Member
"screw"? There is something called "appeal" but until those "low level" decision are overruled, or stayed pending appeal, they are the law, at least in the jurisdiction, and in relation to the people or target, for which they were issued.
People who say "screw" it, when they don't like how the system works, rather than follow the process of the system, have no respect for the Constitution itself. That's fine, but just tell us you would rather live in a dictatorship than a constitutional democracy. Because in a constitutional democracy, anything the President does is subject to being overruled by the Courts, and there's a process to follow which involves "low level" judges -- a term that shows your disdain for the courts. It's fine that you and other Trump supporters prefer dictators but the founding fathers set up a system to avoid exactly that. It's called the "Rule of Law". Look it up and you may learn something. It's a revolutionary 16th century concept because before it existed the rulers made themselves exempt from the law. Under the Rule of Law, everyone, including the President, is subject to the law and no one is above the law. You and Trump may not like this concept, and say "screw" it to judges, but we've evolved way past any concept of society that does not obey the Rule of Law and we are never going back.
Your opinion on what is legal and what is not legal, based on precedents, means nothing. Anyone with even a basic understand of the law knows that any precedent can be distinguished on its facts. That's why judges hear cases. Otherwise, there would be no reason to even have a hearing since precedents would simply decide every case. Of course, there will be precedent cases cited on both sides of this issue.
As to the decision made by Yates, in my view, she was wrong. I share the view of Alan Dershowitz on this issue:
DERSHOWITZ: Yates is a terrific public servant, but I think she’s made a serious mistake here. This is a 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.
In my view, she had no obligation to uphold bad policy, even if certain parts of it are constitutional (and there's no argument that certain parts are), but that is a political decision and as such she should have resigned. She must be guided by the law and not her political views. Instead, she allowed her political views to guide her. That was wrong in my opinion. It just as wrong on the left as it is on the right.
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+1 and it wasn't just any "Republican senator during her confirmation hearing". He is the current nominee for Attorney General. Mic drop.
Canuck
Well-Known Member
Here's the Executive Order.
Executive Order: Border Security and Immigration Enforcement Improvements
Here it is annotated:
Trump's Executive Order On Immigration, Annotated
The AG has a staff of highly qualified lawyers who must analyse every section of this order to determine legality based on the law -- not on political viewpoints -- following which directives are issued regarding enforcement. That requires them to interpret it so you are wrong when you say she should not "interpret" it. It is not only her obligation to interpret it but it is her duty. If any parts of the EO breaches any law then she has no obligation to enforce it -- but that only applies to the parts that breach any laws. She cannot fail to follow it in its entirety because it is bad policy. It is not all or nothing. She must enforce sections that may be bad policy but do not breach any law -- or resign. The Courts will not overrule the entire EO -- only the parts that breach any laws. She knows that but she refused to enforce any of it. That was wrong, in my view.
As to lawyers not interpreting, but only judges, that is wrong. The job of a lawyer is to interpret. They do that on both sides, argue their positions, and the court is the final arbitrator (subject to appeal). She has to do that interpretation, in good faith, based on the law, and not her personal or political views. And until overruled by the court, her interpretation is the law. That's how the system works.
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