On Monday, Sen. Ted Cruz (R-TX) challenged Sally Yates’ January decision to defy implementation of President Donald Trump’s executive order entitled, “PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES.”
Partial transcript below.
CRUZ: Is it correct that the Constitution vests the executive authority in the president?
YATES: Yes.
CRUZ: And if an attorney general disagrees with a policy decision of the president, a policy decision that is lawful, does the attorney general have the authority to direct the Department of Justice to defy the president’s order?
YATES: I don’t know whether the attorney general has the authority to do that or not, but I don’t think it’d be a good idea. And that’s not what I did in this case.
CRUZ: Well, are you familiar with 8 USC section 1182?
YATES: Not off the top of my head, no.
CRUZ: Well, it is the binding statutory authority for the executive order that you refused to implement and that led to your termination, so it certainly is a relevant and not a terribly obscure statute. By the express text of the statute, it says, “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.” Would you agree that that is broad statutory authority authorization?
YATES: I would, and I am familiar with that, and I am also familiar with an additional provision of the INA that says, “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, or place of birth.” That, I believe, was promulgated after the statute that you just quoted, and, that’s been part of the discussion with the courts with respect to the INA, whether this more specific statute trumps the first one that you just described. My concern was not an INA concern, here, it rather was a constitutional concern, whether or not this executive order violated the Constitution, specifically with the Establishment Clause and equal protection and due process.
CRUZ: There is no doubt the arguments you laid are arguments we can expect litigants to bring, partisan litigants who disagree with the policy decision of the president. I would note, on January 27th, 2017, the Department of Justice issued an official legal decision, a determination by the Office of Legal Council (OLC), that the executive order, and I’ll quote from the opinion, “The proposed order is approved with respect to form and legality.” That’s a determination from OLC, on January 27th, that it was legal. Three days later you determined, using your own words, that although OLC had opined on legality, it had not addressed whether it was “wise or just.”
YATES: I also, in that same directive, said that I was not convinced it was lawful. I also made the point that [the OLC] looks purely at the face of the document, and again, makes a determination as to whether there’s some set of circumstances under which some portion of that [executive order] would be enforceable, would be lawful. They importantly do not look outside the fact of the document, and in this particular instance, particularly where we were talking about a fundamental issue of religious freedom, not the interpretation of some arcane statute, but religious freedom, it was appropriate for us to look at the intent behind the president’s actions, and the intent is laid out in his statements.
As an Obama administration holdover in her former role as acting Attorney General, Yates refused to implement President Trump’s executive order, claiming to be personally offended by its instructions. In a statement to Department of Justice employees which found its way to The New York Times within minutes, she offered her justifications:
“I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful.”
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