President Trump has fired the head of the Justice Department for the second time in ten days. Acting Attorney General Sally Yates was fired for not supporting the Immigrant Ban. Earlier in the day she had sent a letter to her staff directing them not to defend in court the ban on immigrants.
The Justice Department’s Office of Legal Counsel had approved Trump’s immigration ban before he issued it on Friday. However Yates wrote that as head of the Justice Department she had a broader responsibility “to always seek justice and stand for what is right.” She went on to state that she is not convinced that the ban is lawful.
In a previous situation, then Attorney General Eric Holder wrote a letter to Congress explaining why he would not defend the anti-gay Defense of Marriage Act. In this case, he had the support of his boss, President Obama. Holder’s justification was that he didn’t believe the Defense of Marriage Act was constitutional. This seems to be a similar circumstance to the present situation. Then President Obama was in favor of that action and had been a professor of constitutional law. However, there isn’t any reason why the opinion of a president should take precedence over the Attorney General’s assessment of the legality of an order or statute. The president isn’t above the law and is subject to the constitution and the federal legal code. The Supreme Court has the final authority to interpret laws and the constitution. It could be quite some time before the immigration ban comes before the Supreme Court for a ruling.
Numerous lawsuits have been filled against the ban. One basis for a lawsuit is the 1965 Immigration and Nationality Act which is now part of the U.S. Code of Law (U.S.C.). Known as “8 U.S.C. 1152” this law forbids discriminating because of a “person’s race, sex, nationality, place of birth, or place of residence” in deciding to issue visas. Since the ban is limited to people coming from seven specific countries, it would seem that it violates this provision. It would take an act of Congress to change the law.
Officially, Yates was fired for “refusing to enforce a legal order.” But the reason she refused was because she didn’t believe the ban is legal. One of the responsibilities of the Attorney General is to furnish advice and opinions to the President and cabinet members on legal matters. It is likely that, due to the secretive way the ban was prepared, Yates didn’t have time to thoroughly review the order before it was released. Since the White House was loudly defending the order, it would not have accomplished anything if she gave Trump her assessment that it was not legal. Instructing her agency not to defend or enforce the order was a more effective way of expressing her concern.
Now that Yates has been fired, every news outlet is reporting that she disagreed with the ban. This publicity, intended or not, will benefit those states, organizations and individuals who are suing the federal government about the order. If it occurred to her that she might lose her job, it wasn’t that big a risk, since she would have been replaced by Trump’s nominee Jeff Sessions in a few days anyway.
Sally Yates came up through the ranks of the Justice Department. Before becoming Acting Attorney General, she had been President Obama’s Deputy Attorney General under Attorney General Loretta Lynch. In the days before the inauguration, Trump announced he was firing Lynch. Yates became Acting Attorney General on January 20th, when Trump became president. Ten days later Trump fired her as well.
As Deputy Attorney General, Yates supervised many agencies including the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Executive Office for Immigration Review. The Executive Office for Immigration Review is responsible for interpreting and administering immigration laws. Therefore Yates is extremely qualified to evaluate Trump’s immigration ban.