The Volokh Conspiracy
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Acting attorney general orders Justice Department attorneys not to defend immigration executive order [UPDATED]
[SEE UPDATES BELOW]
Here, via the Huffington Post, is the announcement from acting attorney general Sally Yates:
On January 27, 2017, the President signed an Executive Order regarding immigrants and refugees from certain Muslim-majority countries. The order has now been challenged in a number of jurisdictions. As the Acting Attorney General, it is my ultimate responsibility to determine the position of the Department of Justice in these actions.
My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC's review is limited to the narrow question of whether, in OLC's view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order's purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.
Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, 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.
Consequently, for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.
A few quick observations. First, the statement seems to indicate that the executive order was reviewed by the Justice Department's Office of Legal Counsel, which apparently concluded that the executive order was lawful. Second, Yates does not claim that she cannot defend the executive order because it is unconstitutional or because the Justice Department would be unable to offer good-faith arguments in defense of its legality. To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not "wise or just." This is quite significant. I am not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis.
Yates is supposed to remain the acting attorney general until Sen. Jeff Sessions (R-Ala.) is confirmed. The question now is whether she will remain in office that long.
UPDATE: Perhaps coincidentally, the Honorable William Pryor, one of the federal judges reportedly under consideration for President Trump's initial Supreme Court nomination delivered a lecture in 2014 discussing when it is (and is not) appropriate for an executive branch official to refuse to enforce and defend a duly enacted law. His lecture was published in the Case Western Reserve Law Review here.
SECOND UPDATE: Some have asked what I think AAG Yates should have done, given her views of the EO. My answer is simple: Resign, and then publicly explain her reasons for doing so. If Yates believes that the President's various comments about a "Muslim ban" undermine her ability to defend (or oversee the defense of) an executive action that OLC concluded (and she does not dispute) is "lawful on its face," she should have stepped down as Acting Attorney General.
There is some precedent for this sort of thing. Recall the "Saturday Night Massacre," when Attorney General Eliot Richardson and Deputy Attorney General William Ruckleshaus resigned rather than fire special prosecutor Archibald Cox at President Nixon's insistence. If AAG Yates believes she is being asked to do something that violates her conscience—as she apparently does—this is the model she should have followed.
ADDITIONAL UPDATE: Monday evening, President Trump fired Acting Attorney General Sally Yates and appointed Dana Boente, U.S. Attorney for the Eastern District of Virginia, in her place.
YET ANOTHER UPDATE: I also recommend Jack Goldsmith's parsing of Yates' statement here.