If the Supreme Court were to accept the plaintiffs' logic in Trump v. Hawaii, the judicial branch will gain new powers over defense policy.
Civic norms in our nation seem to be unraveling. Some citizens and legislators made a concerted effort to delegitimize President Obama by making frivolous claims about his place of birth. Today, other citizens and legislators attempt to delegitimize President Trump by making frivolous claims that his failure to win the popular vote or Russia’s hacking somehow reverses the legal verdict of a presidential election.
The refusal of the holdover Acting Attorney General, Sally Yates, is another troubling step in our the dissolution of our norms. It is a sad matter when citizens and legislators flout them. But it may be of greater concern when executive branch officials do so, particularly when they run the Department of Justice as holdovers in the delicate transition period.
The Department of Justice defends legislation and presidential actions if there is a reasonable basis in law to do so. No Attorney General has ever taken the position that he will defend such actions only if he is confident that they are legal and only if he believes they are just. For good reason. The Department of Justice in litigation acts a lawyer, not a policymaker. And yet, as Jack Goldsmith has shown, the standard Sally Yates articulated for defending the President’s executive order on immigration was at odds with the traditional standard: she declined to defend because she was not confident that the order was legal and thought it unjust.
And beyond her failure to follow standards, she grandstanded. She did not approach the President with any concerns she had, offering to resign if they could not be met. Instead, she wrote a letter to the Department of Justice without consulting the President and allowed it to be leaked it to the press. Would she have ever treated President Obama like this on an issue on which she had reservations? Why does she owe any lesser professional duty to President Trump, for whom she agreed to act as Attorney General?
Some have suggested that she was justified because she really did believe what President Trump did was illegal, given comments he made about a preference for Christian refugees and comments Rudy Giuliani made about how he advised that the order be framed in terms of danger to the United States.
But Yates did not say that the statements made it unreasonable to defend the orders. And in any event, it is hard to see how they materially change the litigation prospects of the order that her Department already approved. The order does not discriminate against Muslims, applying instead to certain nations that are named already as places where visas should be particularly scrutinized. Many populous Muslim- majority nations are completely unaffected. And the order itself contains a preference, not for Christians, as Mark Movsesian notes, but for minority religions in the affected nations. Christianity would naturally be one of those minority religions. And would any serious Justice Department think it a good precedent to allow opponents to impeach the otherwise legal orders of the President based on his off-the-cuff remarks, let alone the comments of people who claim to be advising him?
Transitions between parties are a double pirouette in the dance of democracy. They require agents of the outgoing administration to cooperate with the incoming one. Yates’s behavior damages the trust needed for smooth transitions. Some have called her a hero. But she has eroded an important republican virtue: following traditional civic norms built up over decades even when they go against the passions of the moment. To be sure, as I have suggested before, this President has himself flouted civic norms, but that should not immunize from criticism egregious violations by his opponents posing as subordinates.