The President, Executive Orders, and the Attorney General

President Trump’s recent Executive Order (whitehouse.gov) on immigration has created quite the ruckus.  We have protests around our nation.  We have Democratic leadership calling it unconstitutional and unlawful.  No part of the political spectrum is immune from being caught up in propaganda and headlines.  Do we blindly believe the hysteria?  Should we prepare for the rise of the Fourth Reich in America?  Definitely not.

The key to deciphering news these days is two-fold.  First, we need to resist our natural temptations to be pulled towards the loudest and most energetic voices.  Second, we need to break the story into its important questions and answer each with a level head.

There are four questions that need addressing:

  • What is the Attorney General and what is their role?
  • What did Trump’s Executive Order do?
  • Is Trump’s Executive Order legal?
  • Is Trump allowed to remove Sally Yates from her role as acting Attorney General?

 

What is the Attorney General and what is their role?

During George Washington’s Presidency, Congress passed the Judiciary Act of 1789 that allowed the President to appoint individuals to his Cabinet.  One of these Cabinet positions is that of the Attorney General, AG going forward.  The AG is the head of the Department of Justice.

The Department of Justice has its own website and describes its duties.  Several are listed, but the relevant duty of the Attorney General in this instance is to “furnish advice and opinions, formal and informal, on legal matters to the President and the Cabinet and to the heads of the executive departments and agencies of the government, as provided by law” (justice.gov).

Those last three words are important as we consider current events.  The AG has a duty to follow the law as provided by the Legislative Branch or, in cases of Executive Orders, the President.

 

What did President Trump’s Executive Order do?

The Executive Order in question established temporary moratoriums on immigration from seven countries: Syria, Sudan, Somalia, Iran, Iraq, Yemen, and Libya.  Some of the bans are 90-day, others are 120 days.  In the case of Syria, the ban is indefinite given their current situation.

The order initially included green-card holders but this oversight has since been rectified. 

These restrictions were placed to provide the Federal Government an adequate amount of time to ensure that our vetting processes are effective to prevent Islamic Terrorists and other threats from entering our country under the guise of being refugees.

 

Is President Trump’s Executive Order legal?

It is important to first check any government action with the Constitution.  First, the action of Executive Orders is established in Article II of the Constitution.  It gives the President “executive Power.”  Second, this particular order is in the interest of national security, a duty of the Federal Government.  In regards to the Constitution, Trump has the authority to issue Executive Orders as the head of the Executive Branch. 

Once an action is deemed constitutional, we must look at the action from a legislative and legal standpoint.  This Executive Order is about immigration in the name of national security.  Both immigration and national security are responsibilities of the Federal Government.

Beyond Constitutional responsibilities, we must look at past precedents.  The most recent and relevant case is Arizona v United States in 2012 (oyez.org).  Arizona v United States was a challenge to Barack Obama’s Executive Orders on immigration.  The Supreme Court ruled 5-3 that Arizona could not establish their own immigration enforcement, and that the Executive Order would stand.  Opinions on the ruling aside, the precedent was established that the President has this authority.

President Trump’s Executive Order is within the jurisdiction of the Federal Government, is not restricted by the Constitution and affirmed by past precedent.  This Executive Order is legal.

As some additional food for thought, before a President issues an Executive Order or other Presidential decrees, they get input from the Office of Legal Counsel, a subordinate within the DoJ.  This office is responsible for determining the form and legality of an Executive Order before it is released. 

 

Is the President allowed to remove the Attorney General from their post?

Yes, the President is allowed to remove any Cabinet member from their post at any time, for any reason.  That being said, it is important for public confidence to get some reasons why he would do so.

Let us consider Sally Yates’ own words (nytimes.com).  Her main argument for going against the Office of Legal Counsel is that they do not “address whether any policy choice embodied in an Executive Order is wise or just.” 

Her role as AG does not include dictating whether a decision is wise or not.  Her responsibility is to advise on the matter as written, not as she personally interprets it.  She goes on to say “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.”

Sounds reasonable at first glance, right?  Again, the issue is she does not get to personally decide what is right or wrong.  We are a representative government and an unelected official does not get to choose what law is and what is not.

President Trump’s Executive Order is Constitutional, established by precedent, and the acting AG was refusing to enforce the law.  President Trump had the power to remove her and had solid reasons to do so based on Ms. Yates’ refusal to do her job.

 

We must remain a nation of laws

Our current political climate is unlike anything we’ve seen.  This is especially true for us as Young Republicans.  We need to be vigilant about taking a step back and considering all there is to consider.

We can safely declare that it will be a long four years.  We need to call out government officials when they are violating the law and the Constitution.  We must also defend lawful actions taken by those individuals.  As Conservatives, we must stand by our principles in this time of political turbulence.

 

https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states

https://www.nytimes.com/interactive/2017/01/30/us/document-Letter-From-Sally-Yates.html

https://www.justice.gov/jmd/organization-mission-and-functions-manual-attorney-general#ag

https://www.oyez.org/cases/2011/11-182

 

Jake Gambino is a freelance writer and marketer.  He started studying politics and history when Wisconsin Governor Scott Walker faced a recall election.  He has a weekly blog at JakeGambino.com

 

- Jake Gambino

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  • published this page in Blog 2017-03-02 07:09:51 -0800