TDB: Trump’s Border Patrol Defies Judge, U.S. Senator at Dulles Airport as His First Constitutional Crisis Unfolds

Early in the evening, a huge piece of news broke: Two federal judges, Ann Donnelly of the Eastern District of New York and Leonie Brinkema of the Eastern District of Virginia, had made rulings that would stall the implementation of Trump’s anti-refugee executive order.

For the lawyers at Dulles Airport, Brinkema’s ruling generated a ton of excitement. She ruled that the travelers detained by Customs and Border Protection (CBP) had a right to see lawyers.
After the ruling came out, lawyers bustled around, filling out forms declaring that detainees were their clients (someone had thought to bring a printer). Any minute, they expected, they would be able to see the detainees and try to help them get into the U.S.

At this point, it wasn’t clear how many people were detained and which of them were legal permanent residents of the U.S. Lawyers didn’t even know all the names of the people they were trying to help. It wasn’t clear if some detainees had been put back on planes returning to their countries of origin, or if detainees had been shuttled off to immigrant detention centers in Northern Virginia. The travelers were all being held in what’s called “secondary inspection,” referred to as “secondary.” It’s part of the CBP screening process where lawyers are rarely, if ever, allowed to be present.

But lawyers who spoke to The Daily Beast said it’s also unheard of for government agencies like CBP to prevent people who have the legal right to live in the U.S. from seeing their lawyers. And that’s what was happening.

From: Trump’s Border Patrol Defies Judge, U.S. Senator at Dulles Airport as His First Constitutional Crisis Unfolds – The Daily Beast

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258 thoughts on “TDB: Trump’s Border Patrol Defies Judge, U.S. Senator at Dulles Airport as His First Constitutional Crisis Unfolds

  1. We will get a constitutional crisis here if, and only if, Trump sees these judge’s orders as personal attacks on him. (Which will cause his personality disorder to force him to ignore this ‘criticism’ and continue operating as if the criticism is not valid.)

    This sounds really bad, but I am not sure that these orders even *come from* Trump. I don’t know if he cares about this. It is entirely possible that he will just regard this as a Bannon screwup and blame him.

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    • IIRC, BP is one of the branches with a pretty antagonistic approach to the judiciary. This doesn’t even have to come from on high, just from middle-management (as upper management has been forced to resign and not replaced) who sees the courts as an obstacle and currently lacks any bosses to smack down the stupid.

      Of course the proper remedy is to hold the officials in contempt and jail them — starting with those giving the orders. I believe the US Marshal service does have an excellent relationship with the Courts.

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      • This is another thing that came up on LGM. Different government branches/agencies attract different sorts of employees. DHS and BP attract xenophobes frequently it seems. People who see it as their personal mission to keep people out rather than welcoming them in.

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        • Duh, The mission of the BP is to protect our borders. It even says so at the website, “The priority mission of the Border Patrol is preventing terrorists and terrorists weapons, including weapons of mass destruction, from entering the United States. Undaunted by scorching desert heat or freezing northern winters, they work tirelessly as vigilant protectors of our Nation’s borders.”

          https://www.cbp.gov/border-security/along-us-borders/overview

          What did you think their mission was?

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          • Then it goes on to say, “While the Border Patrol has changed dramatically since its inception in 1924, its primary mission remains unchanged: to detect and prevent
            the illegal entry of aliens into the United States. Together with other law enforcement officers, the Border Patrol helps maintain borders that work – facilitating the flow of legal immigration and goods while preventing the illegal trafficking of people and contraband.”

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            • Law enforcement, yes; police force, no.
              Agencies of limited jurisdiction are completely different in law enforcement than agencies of general jurisdiction. Not even close.

              Besides, the feds are, and always have been, in the political model of policing.
              Not one thing happens in law enforcement at the federal level that is not politically motivated.

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        • It’s probably more productive to look into the incentives that members of the “branch” have. The branch itself may or may not attract a certain type of person, but I suspect that the demands of their job make them more likely to be strident or take the tough stance that Lee mentions or leads them to have the uneasy relationship with the federal judiciary that Morat mentions.

          I don’t mean any of this to justify refusing to obey a court order.

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          • Obeying a court order doesn’t even register on the radar for the foot soldiers.
            Their orders come from On High, no matter how many orders a court may issue.

            They’re not there to figure out what the law is.
            Their only job is to follow procedure. That’s it.
            That the procedure may implicate law is irrelevant to whether the procedure should be followed.

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            • As I think I noted elsewhere, let us remember: Trump decapitated the Executive branch by accepting everyone’s resignations, and he’s having real trouble filling spots.

              Upper management is gone. We’re talking middle management, at best, running the show. The normal high level folks who would slap this down aren’t there to do it, so you’ve got guys who normally have oversight running around with none.

              And if those rumors that the top-level WH folks ordered the various agencies to ignore court orders are true, what do you think middle and lower management are going to do in such an agency? There ARE no higher-ups to take the blame and make the big calls.

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              • It’s not as if agencies have no contingency plans with a clear-cut pecking order when there’s no agency head. It’s a foreseeable enough occurrence that someone is in charge.

                And I’m not going to fill bowls with crocodile tears for the poor government workers.
                I’m thinking it didn’t go far enough for the desired effect.
                Hand every tenth government worker some walking papers, about three rounds, and then start offering monetary rewards for turning in coworkers.
                It’s good for the organization.

                But from a procedural point, even if the SCOTUS had written an order and sent the U.S. Marshals to hand deliver it, no one would do anything, because they can’t.
                It’s not their call whether an appeal or injunction, or other legal action be subsequently filed in response.
                It’s not their call whether it’s a valid order.
                They have no authority to determine what the order may say, much less to establish policies to enact anything in it.
                They have their own legal counsel do that.
                Then a policy gets written. Then it gets sent to committees to determine who gets what procedure, and those procedures written, printed, a little memo noting a procedure update, and some sort of validation process.

                The idea that someone can go up to the BP or DHS & hand them a sheaf of papers (or a scroll, for that matter) and every government employee in the place is going to hop up and start milling about in compliance, like a swarm of ants on an anthill, eager to demonstrate their willingness to comply with the courts is, perhaps, a bit misguided, or tending toward the misguided.
                They’re a bit more organized than that.
                At most, any government worker is going to take the sheaf of papers to a supervisor.

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                • At some point, that paper is either going to reach a break in the chain and stop or it’s going to get all the way to POTUS. I’m assuming the former is what happened. If you’re the person who’s at the break in the chain and everybody beneath you is looking at you for a decision, you’re it. No decision is a decision.

                  I’ve been that guy and it sucks, but that’s the pain of having people report to you. Even more so if you command people who are allowed to physically grab people and lock them up. At some point you might have to make a hard decision and explain it later.

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                  • The sheaf will be diverted to legal at some point, after which there will be memos emailed. Committees will be scheduled. There may be a notification posted on the bulletin board in about a month. People will stop to gaze at it on those days they are really hung over. The world continues to hurl through space without smacking into anything too big.

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                    • What’s interesting about this question of authority is that if one of those agents told me to stop and put my hands on my head and I refused, I’d have about 3 seconds before I got plowed into the ground and cuffed. I wouldn’t get to say, “Hold on, let me check with my lawyer to confirm your order is legal. I don’t know the law well enough to know if you have the authority to do this.” Your choice is to comply or to comply. Fighting over the legality of the order is something you do later.

                      Absent a super-duper good reason, it seems like a injunction telling you to stop what you’re doing works basically the same way. You can go ahead and consult with Legal, but you also *stop what you’re doing* while you wait for an answer because that’s what the judge said you had to do.

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                • “Hand every tenth government worker some walking papers, about three rounds, and then start offering monetary rewards for turning in coworkers.
                  It’s good for the organization.”

                  You have a very strange concept of ‘good’. And an even stranger concept of civil service.

                  To start with, government agencies are created by Congress, assigned a workload by Congress, and funded by Congress.

                  So, the Executive may run the agencies and may set mission priorities, but the missions themselves are set by Congress. Shrinking the mission, and the staff needed to achieve it, is a Congressional prerogative not an Executive one.

                  Second, civil service protections have existed for a very long time. Patronage is fine at the leadership levels of the agencies, but staff people should have their loyalty directed to the agency and the agency’s mission, not the changing leadership.

                  Should NASA scientists suddenly change their reporting standards because the President is a climate-change denier?

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                  • the Executive may run the agencies and may set mission priorities, but the missions themselves are set by Congress.

                    While that is true, it doesn’t really mean much on an operational level.
                    The executive sets the policies which guide the activities of the agency within the guidelines set by the enabling act.
                    Personnel is typically entirely at the disposal of the director throughout, though few would attempt to micromanage on that level.
                    Steady turnover is desirable in an agency, as entrenchment yields certain structural components to the organizational structure which often run counter to agency goals.

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                • It’s not as if agencies have no contingency plans with a clear-cut pecking order when there’s no agency head. It’s a foreseeable enough occurrence that someone is in charge.

                  You should look at the org chart for State right now. Virtually everyone is gone.

                  This isn’t “mid-transition”. This is “mid-transition only some idiot fired all the critical staff before their replacements were ready”.

                  In any case, the point remains — if they had a full org chart, you’d have fewer (not none, but fewer) people running around off the reservation because their own internal setups would be dealing with it.

                  As it is, there’s nobody to smack down any rogue elements (or even give them clear instructions at all) so it’s absolute chaos. Which means more people unwilling, unable, or uncertain as to whether they should obey the papers presented to them.

                  And no one above them to enforce discipline.

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                • “And I’m not going to fill bowls with crocodile tears for the poor government workers.
                  I’m thinking it didn’t go far enough for the desired effect.
                  Hand every tenth government worker some walking papers, about three rounds, and then start offering monetary rewards for turning in coworkers.”

                  Hmm, let’s ask Comrade Stalin how purges work out.

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    • We will get a constitutional crisis here if, and only if, Trump sees these judge’s orders as personal attacks on him.

      Ditch the “only if”. Trump’s perception of personal attacks by the courts is sufficient all on its own.

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  2. We are discussing this on LGM with varying degrees of concern.

    The unconcerned think that this will end when the judge holds a DHS higher-up in contempt for defying the injunction and that this will happen sometime Monday morning. They suspect that on Monday morning one or both of the judges will issue an order to show cause as to why someone at DHS should not be held in civil contempt.

    The cynics see this as a Constitutional crisis waiting to happen or something much worse.

    We shall see what happens.

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      • Given the contempt that Trump/Bannon have for law, I would be more surprised to see them comply rather than flout it.

        I think the important thing to keep in mind here isn’t that Trump holds the law in contempt, but that he holds politicians, the political process, and the media in contempt.

        What we’re looking at is – literally – a new world order, insofar as he achieves his goals.

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        • The Atlantic had an interview with the man who wrote The Mind of Donald Trump story from earlier this summer. Trump and Bannon are not the type of people that work well within democratic institutions. Yglesias put this as “Trump’s campaign makes more sense when you realize he is running for dictator and not President.” Both see themselves as the men in charge, who gets things done and having to work with others to accomplish stuff is not what they do.

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          • Lee,

            Which is fine, just so long as those people are operating within well established institutional structures. Politicians want power, yes? (Obama famously responded to the question “why do you want to be President?” by saying “I want the power”.)

            These guys, tho, have made careers operating outside those types of structures and now want to go national – even international – with the big rollout.

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      • This is a test, to see whether or not we still want to be a nation of laws.

        On a related note, regarding antagonistic politicians knuckling under Trump, my only hope is that they are doing so in the hopes they can find 23 willing (and metaphorical) blades.

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    • I’m looking at the NY judge’s order and I’m nor sure what would be the basis of a contempt ruling on Monday. It doesn’t say anything about access to lawyers. All it says is stop any removals. If someone is removed from this country after the order was issued, I can see a contempt order, but unless a telephone call from Timbuktu is placed by someone unlawfully removed it looks to me like there is more litigation ahead, something in the nature of an order directing the defendants to identify where the named plaintiffs are being held and the authority for doing so. If the Administration wants to challenge the order, they can still appeal next week I suspect.

      My opinion on the nature of bureaucracies is that they don’t answer to judges, they ask their superiors what to do and wait.

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  3. President Donald Trump on Friday banned nationals of seven Muslim-majority countries from entering the United States for at least the next 90 days by executive order.

    The order bars all people hailing from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. Those countries were named in a 2016 law concerning immigration visas as “countries of concern.”
    The executive order also bans entry of those fleeing from war-torn Syria indefinitely.
    Trump also has stopped the admission of all refugees to the United States for four months.
    The order also calls for a review into suspending the Visa Interview Waiver Program, which allows travelers from 38 countries — including close allies — to renew travel authorizations without an in-person interview.

    CNN

    The article also has the entire text of the EO, if anyone actually wants to read it.

    This article also doesn’t mention Obama 2011 ban on Iraqi refugees.

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    • This article also doesn’t mention Obama 2011 ban on Iraqi refugees.

      Doooohhhhh!

      BSDI!!!

      Add: Heres’s the thing: all ya’ll BSDI people wanna reduce policy to politics, and that is obviously – one would think – a self-defeating game regarding policy. It’s what got us Trump!!!

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      • BDSI! BDSI!

        Aint no party like a partisan party,
        ’cause a partisan party don’t stop!

        Oddly, some of us who aren’t of one of the major parties might just think that Both Sides Do It.
        And context is always nice. Did Obama do this? Did Bush? Inquiring minds want to know!

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        • Oddly, some of us who aren’t of one of the major parties might just think that Both Sides Do It.

          Which is your team orientation. Your partisan-based, ideologicallly aligned BSDI moment, Aaron. It’s no different than what you criticize people for*.

          *Except that you get to self-satisfyingly claim you’re “above the fray”…

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          • My team orientation? What the heck are you talking about Still?

            Am I still a Libertarian? Yes. And we often think both sides are bad at various times. Mostly I was looking for some context in relation to various actions of the former pres. and why the current ones would be unconstitutional in relation to those. But whatever.

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            • Am I still a Libertarian?

              Thanks for not making me say it. You’re Team Libertarian.

              No different than Team Prog, Team Left, Team Dem, Team Rep, Team Conservative, Team SoCon, etc and so on.

              Or do you wanna try to argue that your ideological affinity doesn’t corrupt how you see the political world? ((I think it does…))

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        • Oddly, some of us who aren’t of one of the major parties might just think that Both Sides Do It.

          There was this guy that used to comment here named Farmer. He wasn’t GOP or Dem and in fact hated both of them, which you knew because he was always saying so. He was, as he would often point out, equally critical of both.

          Except that he wasn’t.

          Not only did he never criticize a GOPer, he would defend every single GOPer regardless of how illegal, corrupt, or boneheaded they were. (He remains to this day the only person I have ever talked to of any political stripe who insisted Todd Akin was both right and brave for saying what he did.) He did, however, criticize any Dem brought up in any context, even if that Dem was doing or saying everyone agreed was pretty neutral. Before he left, he was our site’s most partisan GOP booster — far more so than either TVD or Tim ever was.

          All of which is to say… If you want to be seen as someone who is equally critical of both sides, aaron, at some point you will have to actually criticize something Trump does or says rather than simply reflexively defend him and his actions.

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          • Reflexively defend him? OK, sure I guess…

            Wasn’t aware I was doing that, in fact I remember calling this election a fractured skull vs. bone cancer. If that is reflectively defending him, I guess I don’t know what defending is. I remember Farmer, his stated dislike of both parties, etc. And that he isn’t around anymore. Much like many other conservatives. And more than a few libertarians too. Did you ever wonder why?

            Over the last few years, the commentariat here has moved quite to the left. And that is cool, but not everyone here agrees with that perspective. And as I often see knee jerk responses to issues that are being discussed come from the left, my instinct is to push back, which often looks like it comes from the right. But Jaybird often has the same pushback, as this tread shows.

            So, for me, the seemingly best way to push back against kneejerkism here would look like GOP support, a party of which I have never been a member of, as I am very socially liberal. That doesn’t mean I don’t think liberal ideas shouldn’t be pushed back on, but this blog seems to have moved to a point that anything resembling a different point of view is BDSI.

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            • “Over the last few years, the commentariat here has moved quite to the left. ”

              Not only that, but certain posters, who will remain nameless to protect the guilty, have become more strident in their unwelcoming tone against those who remain and are of the libertarian-ish leanings / viewpoints. But as Still said above, everyone’s ideological affinity corrupts their viewpoint.

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      • Do a Google search for that Obama 2011 Iraqi refugee ban story and take not of which sites are running that story. It’s not a BSDI argument. It’s an argument coming straight from the right.

        If you’re interested in facts, that should tell you something. If you’re not, then not much to be done.

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          • So there is, in fact, legal precedent for the Executive Branch authority to declare that the vetting process is fundamentally flawed and that review should be more stringent for persons originating in particular countries?

            Awesome. The Trump Administration thanks you for your cooperation.

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            • What?

              The issue isn’t, and has never been, that the president didn’t have authority to to ban all refugees, or even the nationals of the seven countries listed (though I’m sure there will be challenges to aspects of these orders and their implementation). It’s that these Orders were designed for PR, not national security purposes, are ill thought out, sloppily drafted, poorly implemented, and avoided input from relevant agencies.

              The twitter thread above describes the differences in context well enough that I won’t rehash it here.

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              • I actually do think he lacks that power. I think it was Hanley (but maybe someone else) on Facebook who sited some specific laws/acts that would make a country-wide ban done in the way that Trump did it unconstitutional.

                Though it is entirely possible I’m mixing this up with the unconstitutionality of his threat to withhold funds from sanctuary cities.

                It really is hard to keep up with.

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                • I’m fairly certain that under the plenary power doctrine the President power on who may come to the U.S. is almost unchecked. Congress has also granted him discretionary authority in this area, though I can’t remember the specific statute.

                  The sanctuary city issue is likely unconstitutional if he tries to withhold all federal funds.

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                  • It is entirely possible — likely even — that I’m wrong. I’m vaguely remembering what someone might have said on Facebook.

                    Then again, when has that ever been an imposition to insisting something is TRUTH!

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                    • Yeah, I’d hold off before claiming the general thrust of the order is unconstitutional, though their may be individual aspects of it that present some very real constitutional issues (like banning the return of those with valid green cards might have).

                      In immigration the Constitution doesn’t really apply once the policy or legislation is directed outside the US. Ie. who will be admitted as opposed how immigrants will be detained or their rights in this country.

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                      • This is the specific statute relied upon in the EO:

                        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. . . .

                        8 USC 1152(f)

                        There are other provisions which arguably limit that, but the framework is that the President since 1952 has been given broad discretionary power to block immigration by Congress, and the arguments are going to be towards limiting that power, not rejecting that the power exists. (None of this has to do with removal of people in the country though)

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                        • This is the specific statute relied upon in the EO:

                          Erm, you managed to hilariously state the exact opposite cite. You quoted 1182(f)

                          1152(a), OTOH, clearly says this:

                          (A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, 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, place of birth, or place of residence.

                          There are other provisions which arguably limit that, but the framework is that the President since 1952 has been given broad discretionary power to block immigration by Congress, and the arguments are going to be towards limiting that power, not rejecting that the power exists. (None of this has to do with removal of people in the country though)

                          That law, quote clearly, just allows the president to *stop all immigration*, or stop all refugees, or whatever. It allows stopping by *class*, not by *nation*, especially considered in conjunction with 1152(a).

                          The *entire immigration law* was rewritten in 1965 to remove any sort of discrimination based on national origin. This includes having any discrimination based on national origin *literally barred by law*.

                          The president can halt the entire system in cases of emergency if need be. But that does not mean the president can discriminate based on national origin. (Just like anything else, really. The president could shut down White House tours if he wanted…but he couldn’t restrict them to only white people, or men, or people from the UK.)

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                            • A couple of reasons.

                              First, that only applies to travel visas, not green cards or refugees.

                              Of course, it not applying to green card things isn’t to Trump’s advantage…it doesn’t apply to them because green card holders cannot legally be barred from the country *anyway*, so no one bothered to make it *more* illegal to discriminate based on country of origin while breaking the law! (Do we now need government hate crime laws?)

                              The blocking Syrian refugees, believe it or not, actually *does* appear to be legal…which indicates just how idiotic all this is, because that, by itself, sounds like it was really the goal, and if all this illegal stuff hadn’t been tacked on, it might stand.

                              Second, Trump’s order only indirectly blocked issuing visas, because whoever wrote that EO is an idiot who doesn’t understand what a visa is. Trump’s EO *blocked people who already had with visas*, in a completely nonsensical way.

                              So what was happening at the airports was not a violation of the law, because no one ever dreamed the law would be so stupid as to ban people *with visas* (Which are literally written permission to enter the country) from entering the country.

                              This is akin to a law saying that driver’s licenses have to be issued to everyone equally, but then the government says that driver’s licenses for certain groups will not allow them to drive without more tests. This is not *technically* a violation of the letter of the law, if only because it’s so stupid no one expected it. What tests? Are they going to get…some other driver’s license? How will we tell that apart from existing ones? What is going on here?

                              As the courts have basically said, in as many words ‘What the fuck are you morons talking about? What are you even trying to do?’

                              However, this law *does* apply in the future, because *visas cannot be issued for people who cannot enter the country*. People from those countries cannot enter the US, so will not be getting visas (In fact, they’ve already been told not to show up for appointments in some places), and, tada, their visas were now denied based on their country of origin, in violation of the law.

                              So it will apply, but in the future, when the total chaos of ‘We’re now ignoring the permission we already gave you!’ is over.

                              You really have to pay attention to realize just how stupid this entire thing is. Half the people out there seem to be reading it as ‘We will vet people more if they’re from those countries’, but have failed to notice *the vetting process is before visas are issued*…and whoever wrote the law didn’t bother to put this EXTREME VETTING at that point, because they are morons, and don’t realize that saying ‘We will not accept written permission to enter the country we ourselves have issued (Called a visa), but instead will require people to, uh, get more permission somehow, which we will…uh…write down in…something else? Or something. EXTREME!!!!!’

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                          • I think this is a colorable argument. I also think it likely to lose in federal court for a number of reasons. Ie. the Constitutional Plenary Power, the Presidents National Security power, and that when national security is invoked with respect to 8 USC 1152(f) it removes any conflict with 8 USC 1152(a), as a court would likely find that he is not discriminating against aliens with certain nationalities, but rather prohibiting admittance for those citizens for national security purposes.

                            If statutes can be read to avoid contradiction, they (usually) will be.

                            I mean if your interpretation is correct, why wouldn’t Obama’s ban on Iraqi refugees have violated the statute?

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                            • I mean if your interpretation is correct, why wouldn’t Obama’s ban on Iraqi refugees have violated the statute?

                              No, the ‘no discrimination on national origin’ law applies to *travel visas* only, not refugees. Refugees do not enter on travel visas.

                              The EO’s ban on Syria refugees, and the temporary delay in all refugees, is entirely legal.(1) It’s the only legal part of the entire thing!(2)

                              Likewise, *if Obama had banned Iraqi refugees*, it would have been legal.

                              He didn’t actually do that, of course. Trump is lying. What Obama did was require all Iraqi refugees, both past and future, to have some additional security checks done. Those checks were very time consuming, and the refugees who were already here were obvious priority, so incoming refugees slowed down to a mere trickle.

                              This was, obviously, a bad thing, but it was not any sort of deliberate ban.

                              1) Well, it might not be legal under *international law*, because countries do have obligations to accept refugees, but that’s a more abstract discussion.

                              2) Note what people are *pretending* the EO did, the government having some additional vetting when issuing travel visas for people from of certain nationalities, *might* be legal. It’s a fine line, there might be some national security wiggle room…the executive is allowed to set vetting rules and is in charge of vetting, and maybe it can put some weight on national origin as part of that process, even if national origin is impermissible to use by itself.

                              But that is not, in fact, what the EO actually did.

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                            • the Constitutional Plenary Power, the Presidents National Security power, and that when national security is invoked with respect to 8 USC 1152(f)

                              Oh, and, as I’ve mentioned elsewhere…1182(f) (Again, that’s 1182, not 1152) is *extremely* clear in that it says *classes*, not nationalities.

                              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.

                              It even *gives examples of what classes are*: ‘immigrants or nonimmigrants’

                              So, in the real world, classes appear to be things like ‘H1 visa holders’ or ‘student visa holders’ or ‘refugees’. (The law *there* even appear to allow the suspension of the entry of green card holders, but that’s unconstitutional.)

                              The president can suspect *any of those individual classes*. He can even, as it says, suspend ‘all aliens’. That’s all the power he gets. Either by class, or all of them.

                              There is absolutely nothing in that text allowing him to suspend by nation. A nation *is not a class of aliens*.

                              In fact, the title of 8 U.S. Code § 1182 (a) is literally ‘Classes of aliens ineligible for visas or admission’ and then it spends a lot of time classifying everyone…and not once does it include anything about national origin. Likewise, 8 U.S. Code § 1227(a) is ‘(a) Classes of deportable aliens’.

                              Although these are classes of people already not eligible, and thus presumable none of them are anything the president would need to ban. If you want to see *immigration eligible* classes, look here: https://www.law.cornell.edu/uscode/text/8/1153

                              The entire thing Trump is trying to rest this on is nonsense. That is not what ‘class’ means in immigration law. Class of alien is merely a bunch of different ways that are used to classify aliens (duh)…and the US government *has been forbidden from using national origin to classify aliens for 50 years*, and thus it cannot possibly be a ‘class’ under the law.

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                              • I would love for it to be struck down, I really would. I just don’t get my hopes up when we’re dealing with immigration and the presidents national security and plenary powers.

                                This will be litigated, and, as I said, I suspect strongly that Trump will rely heavily on the fact that the order is (technically, though probably not in practice), a suspension of visa’s from certain terror prone countries (as nonsensical as his choice of this list was) while we rework our ‘vetting system’ and not a ‘ban’, and that he has broad national security powers to help keep the homeland safe. We’ll see how the courts impose a little closer scrutiny, though I try not to get my hopes on immigration and national security cases.

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        • And here you’re showing your partisanship again, Aaron. Rather than ask why these policies might be different, or justified, or at least make sense, you’re playing a meta game which reduces each to the other since “both sides criticize the other”, thereby justifying a rejection of “both sides” even as you criticize each of ’em.

          What’s absent in any of this, or any of your other comments over the years, is a positive policy proposal you support and advocate for. Instead, all you do is criticize “both sides” on the grounds that they’re equivalent politically since “both sides do it”. Which really, and I mean this generously, makes no fucking sense at all.

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          • No policy proposals? That might be fair, I certainly cannot recall all of my posts. But what I am seeing is not so much policy proposals, but as you and I both say, partisanship. I will admit that I look at my old team not with sympathy so much as exasperation. And as there are so few conservatives around here anymore, I do tend to point out blind spots on the left, or blind spots as I see them.

            I do feel that in many cases it is BDSI, no more, no less. But you are right, I should put up more positive policy proposals. But Meta? That is cold man (I did see something the other day on how Trump is the first PoMo pres, could out Derrida Foucault.)

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            • Oh, Trump ain’t a post modernist. He’s just exploiting the mayhem post modernists have created and trying to drive a nail in the coffin lid of non-subjective political reality.

              Post-modernists should thank him for that. But he isn’t a post-modernist. He’s just an opportunist, grounded in a conception of reality PMers fundamentally reject.

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    • Trump’s EO is pretty nasty. The one thing I would say that’s being exaggerated by the press is the idea that this is an anti-Muslim action — as your quote mentions, the specific list of countries was already carved out a year or two ago as being especially risky, and there are plenty of Muslim-majority countries that are not on the list. It’s pretty clearly not about Muslims writ large but about Islamic terrorism, though of course it casts a much-too-wide net.

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      • I would be more inclined to believe this if Rudy had kept his mouth shut, or if Trump hadn’t compaigned on a Muslim Ban. As is, the ban looks to be extremely under-inclusive and also extremely over-inclusive. There’s also the matter of the provision about religious minorities fearing discrimination.

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      • For one thing there a few Muslim majority countries with strong ties to past terrorist acts, like Saudi Arabia that Trump does business in. Hmmmmmm……

        So it’s not about Muslim’s in general it just focuses on Muslim majority countries. Okay.

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      • So why all the exceptions and comments about Christians?

        Especially on the heals of the Holocaust Remembrance statement?

        In the latter, they were unwilling to single out Jewish victims because all victims were to be considered equally.

        With the former, he’a signaling out Christians for sympathy… implying Muslim victims are somehow less deserving.

        Can you square that circle?

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      • That was my impression, too, KenB, but there is this from the EO, which so far I haven’t heard much talk about (section 4, subsection B):

        …the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization

        To me, that reads as an attempt to try to prioritize Christian refugees over Muslim ones.

        Admittedly, that doesn’t seem to be the portion of the EO people are referring to when they say it’s anti-Muslim. And to my knowledge, administrations at least since Clinton, and probably earlier, have designated certain countries as being state supporters of terrorism, and the list, if I recall, tends to include Muslim majority countries.

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        • …the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality

          Am I reading that correctly in the the Secretary of State is *supposed to determine what religion someone is*?

          Like, officially? US government officially? The US government is going to officially decide if someone who says they are a Christian is a Christian or a Muslim?

          Well, hey, looky there. Constitutional violation.

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          • 1. I don’t see where you’re seeing that implication in that passage (that is, a direction to investigate someone’s true religion as vice what they claim it is (something done by President Bartlet in a famous West Wing episode)).

            2. “to the extent permitted by law.”

            …That being said, it may be that prioritizing persecution claims made by members of minority religions (as they report their religion) constitutes a constitutional violation. But for all I know that may be de facto standard State Dept. practice, even if such is not a formal policy directive. I honestly don’t know.

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            • No. 1: That episode really bothered me. What if the Chinese refugee hadn’t said “shibboleth”?

              No. 2: Good points. I don’t know how much all that is boilerplate and a legacy of how things have been done and how much it’s a Trumpian innovation. It wouldn’t surprise me if that requirement be a standard feature of what qualifies as religious asylum.

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              • The U.S. is obligated by domestic laws that execute international treaties to provide refugees with safety from persecution or torture. There seems to be a frequent misconception that refugee status involves generalized hardships from civil wars or break down of law and order. A lot of the more recent litigation involving refugee issues in the U.S. involves Haiti, and very few people from Haiti were found to qualify for refugee status because the conditions complained of are generalized to a failing, violent state. To get to the main point, a person is more likely to be eligible for refugee status if the story ends with “because I am a Christian,” or “because I am a Kurd,” etc.

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                • To get to the main point, a person is more likely to be eligible for refugee status if the story ends with “because I am a Christian,” or “because I am a Kurd,” etc.

                  Yes, but ‘I am persecuted because I am a…’ really means ‘I am persecuted because I have different religion beliefs than they do’.

                  We are equally accepting if the person says ‘I am persecuted because, although I am the same religion as them, I do not believe [specific religious belief]’ or ‘I am persecuted because, although I am the same religion as them, I do not follow [specific religious rule]’.

                  And none of that is important. We don’t ask if that religion *should* include that religious belief, or if that rule makes sense or not, or anything, or what religion someone *actually* is.

                  In fact, none of that is even important anyway. No one insists that the persecution be religious…it’s just that we are more likely to believe persecution exists (As opposed to, for example, the guy just being a criminal) if there is some ‘justification’ for them being persecuted, and religion is a good^Wtraditional reason to persecute people.

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                  • I’m not sure what you are asking. If someone is physically present in the U.S., they have a clear right under statute to request asylum and receive whatever process that entails. The standards to qualify are high; IIRC during the Haitian refugee crisis 95% were returned.(*) But they have a right to the process, otherwise there is no way of knowing who qulifies to stay. The standards are strict. If the notion of returning a young girl to her home country to face genital mutilation turns your stomach, as it does mine, then you may wish to turn away, as that is what is permitted.

                    (*) I looked at European numbers at one point and they may not differ that much. The difficulty with comparison is that EU countries tend to have a tier that is supposed to comply with international law, a tier that for EU law and a tier that reflects domestic law.

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            • It seems likely to me that there was always something of a de-facto priority placed on religious persecution claims made by religious minorities, as compared to ones made by religious majorities. Though perhaps that is entirely wrong.

              But for the Trumpists the point of the passage, let’s be clear, is the converse of that: to pointedly de-emphasize, and let’s further be clear – that means to deny – persecution claims made by members of the majority religions, in the countries included in the bans.

              So, that is to say, to turn away Muslims (I’m guessing there won’t be much time made to hear denomination/sect-based persucution claims), and to be newly attuned to claims of persecution by Muslims of Christians in Muslim-majority lands.

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          • Maybe….? I have complex views on that passage. While I don’t trust Mr. Trump’s intentions at all, I also think it’s okay to provide asylum for those who flee religious persecution, and to provide that asylum, it is necessary to define persecution, which in turn seems to require defining religion and assessing to what religion one belongs.

            But I’m very disturbed by that passage. It does require the executive to parse what is a religion and, presumably, to decide who is a Christian or a Muslim or a Zoroastrian, or whatever. Like you, I’m uncomfortable with that. I’m also uncomfortable with “provided that the religion of the individual is a minority religion in the individual’s country of nationality” because that seems to overdetermine things in a way that probably shouldn’t be.

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            • Exactly right. If your Sunni and have been targeted by a Shia militia for living in a Shia neighborhood, you have to show the targeting was because of your Sunni religion through both direct and secondary evidence. Though if you aren’t a practicing Sunni, you can try to show that they thought you were.

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            • While I don’t trust Mr. Trump’s intentions at all, I also think it’s okay to provide asylum for those who flee religious persecution, and to provide that asylum, it is necessary to define persecution, which in turn seems to require defining religion and assessing to what religion one belongs.

              No it doesn’t. All it has to do is require someone demonstrate they were persecuted *on grounds that the person persecuting them claimed was religious*.

              For example, say someone is fleeing a repressive regime because the regime claimed it was immoral to wear hats, and the people fleeing felt that was moral.

              Are those…two different religions? Is it one religion in a schism? Are these people just wearing hats out of spite?

              It doesn’t matter. Those people are being attacked *by what the attackers admit is a religious belief*. Trying to put any actual religion names in there just confuses the issue.

              It does require the executive to parse what is a religion and, presumably, to decide who is a Christian or a Muslim or a Zoroastrian, or whatever. Like you, I’m uncomfortable with that.

              A I said on some other blog: People should show up saying…yup, we’re Christian. We follow the seven pillars of Islam, read our Koran, pray towards Mecca…you know, normal Christian stuff. …oh, I’m sorry. Is your *opinion* of Christianity something else? Well, that’s interesting, but we are, in fact, Christians, and I’d like to see the US law defining the correct beliefs of Christianity, which I am fairly certain would be unconstitutional.

              Or, alternately, people just claim that they, for example, are otherwise standard Shia Muslims, but they think you should wear a smiley face sticker all day, on every fifth leap day, which makes them literally the sole practitioner of their own religion. Oh, what’s what? That seems to just be something I made up? Well, it’s interesting that the US is choosing to reject my establishment of a religion, isn’t it? I wonder if they’re allowed to do that…do other people need permission to schism *their* religion? Is there a form I need to fill out? Do we have to run it past religious judges?

              I’m also uncomfortable with “provided that the religion of the individual is a minority religion in the individual’s country of nationality” because that seems to overdetermine things in a way that probably shouldn’t be.

              I’d like some evidence this isn’t supposed to literally be interpreted as ‘Christian’, and that the administration isn’t going to pretend the difference sects of Islam are the ‘same religion’.

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              • No it doesn’t. All it has to do is require someone demonstrate they were persecuted *on grounds that the person persecuting them claimed was religious*.

                And it is worth pointing out that *literally any persecution* is grounds for refugee status under international and US law, so what qualifies as ‘religious persecution’ is a bit moot anyway, and really only is a statistical tool.

                Religious persecution, as far as I know, it was not specially privileged in any sense until this EO. (1)

                The US government would sometimes comment that religious persecution was happening and that was why it was opening the door to and welcoming refugees from specific location, but refugees from those places were never required to demonstrate they *were* being religiously persecuted, just that they were persecuted in general.

                1) Actually, not really. This EO, strangely, just seems to privilege members of any minority religion, not require those members suffer specifically religion persecution. Once again I find myself arguing against what the EO *should logically have said* instead of what it actually said, which turns out to be much stupider.

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                • And it is worth pointing out that *literally any persecution* is grounds for refugee status under international and US law

                  It’s not any persecution. The persecution (or well founded fear of it in the future) must be based on the victims membership in a particular social group (PSG), race, religion, nationality, or political opinion. This list is certainly not exhaustive of all possible forms of persecution. The most common type that immigration lawyers are fighting for today is those who are targeted by gangs in Central America under a variety of PSG formulations, though none have been particularly successful.

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                  • It’s not any persecution. The persecution (or well founded fear of it in the future) must be based on the victims membership in a particular social group (PSG), race, religion, nationality, or political opinion. This list is certainly not exhaustive of all possible forms of persecution.

                    Persecution as *a matter of law* is defined as punishment or harassment of someone because they are a member of a particular group. (The list is literally what you quoted there, the same in national and international law. Although in reality, all the others are just shortcuts for common types of particular social groups. The list is just so you don’t have to prove your religion or political beliefs are a ‘social group’.)

                    I know people use ‘persecution’ loosely to mean any sort of unjust treatment for any reason, but, legally, to be persecuted as defined under international law (and thus eligible to be a refugee), you have to unjustly treated because you are (Or believed to be, or married to, or whatever) a member of a specific group.

                    All such people (Which is the entire realm of persecuted people as a matter of law.) can be given refugee status under US law, with no distinction made of the type of persecution.

                    The most common type that immigration lawyers are fighting for today is those who are targeted by gangs in Central America under a variety of PSG formulations, though none have been particularly successful.

                    That’s…because they’re not persecuted. They are not subject to violence because they are a member of any particular social group. (‘Not a drug gang member’ is not really a social group.)

                    They’re just subject to violence because there’s a lot of violence.

                    I know it seems like those people should be helped, but diluting refugee law to include ‘Their conditions are just generally shitty and violent’ is not helpful. Refugee law is the last ditch emergency functioning of international law, and using it for non-refugees is like calling 911 because a cat is in a tree. The more non-refugees are in the system, the less actual refugees have anywhere to go…and the less governments will cooperate with the system, so they’ll have even less.

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                    • I don’t think you are correct regarding your definition of persecution. The question of whether persecution has taken place, or the applicant has a well founded fear of future persecution, should be separated from the question of whether the alleged persecution is based on one of the five enumerated grounds. This is why proving a nexus between the persecution and one of the five protected classes is so important. It is equally important if you are claiming asylum for a PSG that you either use an existing PSG or formulate your proposed PSG to satisfy the applicable case law.

                      From my reading of your comment, it seems like you are treating persecution as synonymous with being a refugee, which it is not, as well as forgetting about the element of internal relocation, which can kill a refugee or asylum claim rather quickly.

                      I’m an actual immigration lawyer who was involved in PSG litigation in Second Circuit during law school when the PSG test was announced. The test is now 1) Immutability, 2) particularity, 3) and social distinction. Social distinction was first created as the social visibility test in response to a gang case (I don’t remember the exact PSG formulation), and was sent back to the BIA for being ill reasoned and at odds with prior precedent. On remand it was changed to social distinction and explained as whether society as a whole sees the group as a PSG. This is despite the fact that what should actually matters is whether the persecutor sees the group as a PSG.

                      As, I believe, the Seventh Circuit noted, this new test is incompatible with prior PSG’s that have been accepted, and does not reconcile this contradiction.

                      So, in answer to your last paragraph. There have been a number of gang related proposed PSG’s, including former gang members from country X, those who resist gang recruitment, those who protest gangs, etc. Some of these would likely satisfy the original two elements of PSG analysis. Because of this the BIA added the third element, and held that former gang member did not meet this test.

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                      • From my reading of your comment, it seems like you are treating persecution as synonymous with being a refugee, which it is not, as well as forgetting about the element of internal relocation, which can kill a refugee or asylum claim rather quickly.

                        No, I’m treating persecution as *the ability to be granted refugee status’. Why would I think people who were persecuted magically are refugees? Obviously they have to escape their situation, and find a place to apply for refugee status.

                        Also not entirely sure why you think internal relocation is relevant to claims of persecution. I think you misunderstood my ‘can be given refugee status’ as ‘*shall* be given refugee’ status. Persecution is required for refugee status, it is not the *sole* requirement. (Hell, even if they met every single requirement…the 50,001st guy isn’t getting in.)

                        You seem to be trying to re-litigate refugee law with me or something. Man, I’m not the boss of refugee law. I can’t control how strict the legal standards for persecution are, and have very little opinion on them, except that refugee slots are so tight I *really don’t want* any people who could possibly stay alive without them to get them, so I have no problem with the standards being as strict as possible *as long as all slots get filled*. But that is an entirely different topic.

                        What I said is that any persecution, (as defined by law) is grounds for refugee status. There’s not some other forms of persecution that are not grounds. (Because refugee law is the only place the concept of persecution exists *in* the law at all!)

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                        • No, I’m treating persecution as *the ability to be granted refugee status’.

                          What I said is that any persecution, (as defined by law) is grounds for refugee status.

                          Persecution as defined by law, is not, by itself, grounds for refugee (or asylee) status. It just isn’t. This wouldn’t bug me so much if you stopped saying *as defined by law,* and then misstated the law. There are other elements. People are persecuted for reasons that are not one of the five listed grounds all the time. The discussion of PSG below was to show you that these kinds of cases are analyzed not on whether the former gang member faces a well founded fear of persecution, but whether they fall into a protected class. Seriously, just google the nexus requirement. And even if they are persecuted by the government (or force they cannot control), and there is a nexus between that and a protected ground, if they can internally relocate they can be denied refugee (or asylee) status (at least here in the US).

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              • Thanks for your thoughts on this, David, but I guess I need to know more about the tests and standards the US uses to determine whether someone is fleeing persecution before I can sign on to exactly what you’re saying. You evidently know a lot more than I on the subject, though.

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      • This was a fun one because on the one hand it’s clearly not a Muslim ban, but it’s also almost certainly designed to look to his base like a Muslim ban. It sends a message that he’s hard on those Evil Countries to a bunch of low information voters who are scared and don’t now which countries do what, and it doesn’t step on the toes of cherished allies like Saudi Arabia.

        Then the left tries to score points by calling it a Muslim ban and steps on a rake because Trump defenders can say, “Look at all of these Muslim majority countries that aren’t banned!” and the left looks hysterical for clearly overreaching on an otherwise reasonable point. And of course, even if it was a real ban on all Muslims, I’m not 100% sure that calling him out on it is a political winner. It seems like enough of the electorate (and surely plenty of Trump supporters) would just say, “Yeah, that’s what we want. And he’s going to fire the judges who rule against it!”

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    • So what if the shoe was on the other foot, you are saying?

      OK suppose President Gillibrand is newly inaugurated in January 2021, and a holdover from AG Sessions tenure refuses to defend an executive order?

      Welp.
      This is why some people advise having your effing ducks in a row, consulting with lawyers BEFORE you start shooting EOs out of your nether regions.

      Because lawyers are pretty good at reading the lay of the land and advising the Executive on possible ramifications of his actions.

      Like this one.

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        • See, this is an example of what I called the cat & mouse game of legal maneuvering.

          Which is actually well within the historical examples.

          Not every policy change of a new Administration is welcomed with resounding applause, in face most are met with resistance, some mild and covert, others more confrontational.

          It gives me both hope and pause, that power in America isn’t some binary diktat of a man, but is shared by hundreds, thousands of lever-pullers who are given agency and discretionary power to either speed or slow down the desired change from the top.

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        • Me, I’m anticipating a set of SCOTUS decisions that say Kim Davis was in the right — it’s the states’ call, not the feds’. Anthony Kennedy and RBG are getting up there. And the (D)s in the Senate seem to be able to ask exactly the wrong questions of Supreme Court nominees.

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        • The legal profession is difficult enough without political hacks complaining that they cannot do their job (nor anyone else in their office) because they don’t agree with their client, and/or their representation may interfere with upcoming job interviews.

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          • There are laws and then there are norms.

            You can get rid of laws in service to norms. Hey, you can always re-pass a law. Re-word it. Clarify this part and remove that part.

            You get rid of norms in service to laws?

            Well, we’re going to find out what happens when you do that.

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            • Beyond laws and norms, there are rules of professional conduct. They are in place to protect the profession. If she didn’t like an assignment, particularly if she thought it violated her professional obligations, she should have quietly resigned to spend more time with her family.

              Instead, she engaged in shameless, unethical self-promotion, no doubt in furtherance of her search for a new job. The first person in the Trump administration fired in the process of using her job for personal pecuniary gain.

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              • Well shit, then Trump should respect her for it, it’s his stock in trade, after all.

                I mean, that press release has pretty much guaranteed her a nice job with some liberal/democratic operation or politician.

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              • I don’t think she acted unethically. She holds a Georgia law license and I cannot find any portion of the Georgia Rules of Professional Conduct that prohibits her discharge of the public duty that she did when she opined that the executive order was of such questionable Constitutionality that she would use the discretion vested in her as Acting Attorney General to not defend it. That, after all, is what then-Senator Jeff Sessions made it a point to ask her to do when he personally weighed her merits to hold this position in the first place. And, it is probably what Georgia Rule of Professional Conduct 3.1 demands that she do, even at peril to her own self-interest. Though your point that she may be advancing her own self-interest is well-taken, I don’t see any reason that she can’t do that.

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                • Here’s Sally Yates’s letter.

                  She makes the argument that the Executive didn’t sufficiently make the case that the EO was legal, rather than stating that the EO was illegal.

                  I kinda wish that the letter said “No, this is illegal” (or, perhaps, “unconstitutional”) rather than what it did say. I kinda wish that she had resigned stating loudly “NO THIS BULLSHIT IS ILLEGAL!” (or, perhaps, “UNCONSTITUTIONAL!”)

                  Ah, well.

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                  • This is legalspeak.She is saying exactly what she is empowered to say.

                    Even the executive order is innocent until proven guilty — she can’t actually say it’s unconstitutional, I think, because she’s not a judge.

                    She can say, “This is drek, and I can’t possibly defend this!” Which sounds like what she’s saying.

                    It’s also a sidealong “You Might Have ASKED us to fix this for you!”

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                • If a client asks a lawyer to take a case the lawyers finds to be “questionable,” most would likely take the case so long as it does not require them to make baseless arguments. First problem is she has narrowed the line between the type of arguments advanced by Orly Taitz and cases in which credible legal commentators have indicated the executive order is Constitutional (or most of it).

                  But if the attorney feels the case is baseless, the attorney is not then free to make public announcements that prejudice the client. They would also not take steps to preclude other representation.

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              • PD Shaw,
                Asking someone to be quiet is justified only when you’re resigning over a difference of opinion. When it’s a matter of morality, I would like to encourage everyone to speak up.

                GWB did some partisan witchhunts. We wouldn’t know about them if someone didn’t speak up.

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        • They really aren’t analogous situations though. Kim was defying clear SCOTUS ruling, the DOJ is an (theoritically) independent agency, meaning the attorneys can, and should, refuse to enforce and order or law they find unconstitutional or illegal. The same cannot be said of county clerks and SCOTUS rulings.

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          • Fun story: Sessions (yes, the one up for AG) actually pressed Yates on that very issue — defying the President if she thought he was in the wrong Constitutionally and legally.

            It’s very clear from the thrust of his questioning that he thought doing so was the right thing to do.

            So just to recap: The man that would have been her boss, back when he approved her for the job she just lost, thought what she just did was absolutely the duty required of her job.

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              • I happen to agree with him myself. I’d like to think I’d agree with him (and her) even if the ideological shoe was on the other foot.

                If nothing else, it’s not like the DoJ not defending it in court prevents it from being defended in court at all. The WH can use their own counsel, hire counsel, etc , so it’s not a veto point for EOs.

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      • President Gillibrand would have sought out and considered legal counsel to establish the defensibility of her EO before promulgating it. She is a lawyer, after all, and a former federal appeals court clerk. So when the holdover deputy AG from the Trump Administration indicates that he (you know it’s gonna be a “he”) will not defend the new EO, she can tell him, “Yes you will, and here’s your colorable legal argument right here in this memo. As an attorney you have an ethical duty to your client to make all reasonable arguments on its behalf. I speak for your client. Now, go do your job.”

        And, if President Trump (or one of his minions) had such a memo to have given acting AG Yates, I’d have said it was her duty to go make the argument in it. Indeed, I’m reasonably sure that such a memo could be researched and a colorable argument promulgated in defense of this EO.

        N.b., “colorable” in the context of evaluating a legal argument means “nominally plausible,” as in “passes the ‘giggle test.'” It does not mean “likely to prevail.”

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    • So, what does Trump do? Repeal and replace her with someone holding more Trump-congenial views on the constitutionality of the EO?

      {{Maybe he’ll invite her to a press conference, have her stand in front of the podium, and say “you’re fired!”}}

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    • And a smaller number of people to say something to the effect of “wait, wait, wait, wait, wait.”

      *I* was about to say ‘wait, wait, wait’ when I heard about that, because not defending it in court means it’s not *shot down* in court, which means it doesn’t stop that sort of crap from happening again.

      And then, before I could post that, she was fired. Heh.

      …betrayed the Department of Justice? What the hell does that even mean?

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              • You often encourage us to think about these matters in terms of whose goals they help.

                Did the events of last night help Trump get closer to his goals or Trump’s opponents get closer to theirs?

                Sessions was likely to be confirmed relatively soon at which point the acting AGs refusal would have been a non-issue. Her action was largely symbolic. As was Trump’s firing and statement.

                Trump lovers will love it. They’ll see him squashing down a rogue underling who might have been breaching her professional duties and ethics.
                Trump haters will hate it. They’ll see it as further refusal to tolerate any dissent and the statement as a petty personal attack to add to the long list of petty personal attacks.

                But what about the mushy middle? Now, maybe the lenses on my bubble is biasing me, but I struggle to see how this plays out in Trump’s favor there. And the thing is… it *might* have if he showed restraint. If he had said, “This woman is violating her duties. But no bother… Sessions will be able to step in and fulfill the duties by the end of the week,” that might turn her into the bad guy and him into the Grown Up in the Room. But because of what he did, I can’t help but see either BOTH looking like bad guys or her becoming sympathetic and him being alone in the bad guy seat.

                Which, again, works for Trump Lovers but I don’t think the mushy middle.

                But you had a better sense of all this earlier so maybe you see what I’m missing.

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                • I believe that Sessions is already on the record as saying that he would enforce laws that he didn’t agree with.

                  So we’ll get to see what that looks like.

                  When it comes to the mushy middle, I’d more notice how many mushy middles there are.

                  How does the mushy middle in NYC/LA/Chicago think about this?

                  It’s awful. It’s the worst thing that has ever happened. Whatever happened to freedom of conscience? Our country is *FOUNDED* upon stuff like Jury Nullification! Read about William Penn!

                  How does the mushy middle in flyover think about this?

                  How does the mushy middle in the rust belt think about this?

                  If I had to guess, their best gauge of how things are going is the volume of the screams of the people that they specifically voted against.

                  If I am right about that being their gauge, then they’re smiling as they sip their cheap-ass coffee this morning.

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                    • @will-truman

                      All this stuff going on…..remember that intel report about Trump ‘s cozy relations with Russian and the hold they had over him yadda yadda.

                      Anyone remember that? We ain’t talking about are we?

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                      • Interestingly enough, one of the claims in the Russian dossier on Trump was a mention of giving Carter Page (Trump’s first foreign advisory who ‘took a leave of absence’ in September, then Trump denied ever knowing him) a 19% stake in Rosneft (a Russian state owned oil company) if he could get sanctions lifted.

                        Guess what company, in the largest privatization in Russia in decades, sold 19.5% of itself to a buyer no one can identify or tell where the money came from? The sale happened in December, the dossier with that claim has been circulating for months prior.

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                  • Why fire her, she was doing the smart thing. You got an EO that has already had two federal judges issue rulings to halt, and your own staff is telling you is a legal mess. Putting the brakes on it until it can get sorted is how you avoid fighting lawsuits later on.

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                    • As I noted, Sessions (yes, that Sessions) actually brought up this very scenario in Yates’ confirmation hearings.

                      He thought it a good thing to be willing to stand up to the WH if you thought you were stuck defending an unjust or unconstitutional law.

                      Of course now it’s just crazy talk.

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                    • I’ve been convinced (by someone on the lawfareblog, I think) that her stated reasons leaned too much into “I disagree with this policy” and insufficiently explained “this policy is prima facie illegal and unconstitutional”

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                    • I wouldn’t have done the executive order to begin with. If an AG told me it was a bad idea, I’d listen. But an EO that undermined policy publicly? Nope. She’s gone. Our system has a lot of veto points without the AG’s office becoming an independent one.

                      There is little doubt that some (probably most) of the EO is legal. As such, there are going to be lawsuits to figure out precisely what is and is not legal about it. That means they go to court, with both sides represented. It’s the job of the AG”s office (via the Solicitor General) to represent the government.

                      I don’t blame her for doing what she’s doing. I might do the same. But she doesn’t get to do that and keep her job.

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                      • The thing is, if you didn’t agree with the policy, there’s probably a way to defend it in such a half assed manner that it gets overturned by the courts anyway.

                        I mean, if there’s plausible deniability for anything in this administration, it’s the abilty to deny that doing something half assed was not actually a deliberate attempt at sabatouge.

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                        • Another problem is by flaming out so spectacularly, there’s now one fewer person around to tell the US Marshall service to do its fishin job – there are some reports out there that this is becoming an issue.

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                      • I still think her explanation was pretty vile given that it creates the perception that the role of the government attorney is not just legal, but to judge policy. I know a lot of government lawyers in the trenches defending policies and practices they don’t agree with, and often they say so to me in private.

                        Would you have agreed to stay on as acting AG for Trump?

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                        • At first or after this? At first, yes. After this? It depends on stuff going on below the hood (are people above and especially below me listening to me? Do I really hate my job?) and the green card thing. I would have a lot of difficulty being on board with the green card thing. If I could do my job without hating myself and the green card thing isn’t an issue (I’ve been out all day, so I don’t know what the current status is) then I probably would.

                          Given that a new AG is likely to take office soon, I wouldn’t feel a strong need to stick it out, but then I also might be more patient to begin with because the end is (presumably) in sight.

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                          • For the first 24 or 48 hours, the WH explicitly overruled DHS and said it applied to green card holders, which is not even remotely constitutional.

                            Some number of GC holders were coerced into relinquishing their GC status and were shipped out of the country after doing so.

                            Nobody should be comfortable with that.

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                            • Gotcha. Some of it depends on “under the hood” kind of stuff, but I would probably take it with the (wrong, it turns out) assumption that EO’s like this one would wait until he had his own AG in place. If I was told about “a large-scale immigration policy change” (even if I didn’t know the particulars) I’d be a lot less likely to take it.

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                              • I don’t know if there is necessarily a correct answer, but since you placed this in “what i would do” terms, I asked. My judgment on the situation is due to her acceptance of the position. If one believes Trump is a fascist or NAZI or evil, there really is no justification to accept the position. Even if there is this sort of “subvert from within” claim, I think it is deluded to believe that inspiring institutional dysfunction is an admiral goal to pursue. If she thought, its just a few days and its a nice gig, maybe she’s just naive. Trump said he was going to suspend immigration from terror prone countries in his first 100 days; maybe she thought she would be out by then.

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                                • One of the under-the-hood things is if I thought I could have a positive impact, or would be better than the next person they might choose. That’s why I’m generally okay with Republicans I respect taking positions in his cabinet. Mattis may have talked Trump out of torture, for example. And better Mattis than Bolton (or whoever). It seems unlikely that an acting AG would have much in the way of influence, though, which would be a mark against it.

                                  So… I would probably be asking questions about their intentions. The AG job should be filled pretty quickly, so I wouldn’t necessarily worry about the “first 100 days” promises. But I might ask.

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                            • She knew the job was temporary, a matter of a month or two at most until the AG was confirmed and her resignation accepted.

                              It’s one thing to sign on as a seat-warmer for a month or three — after all, how many Presidents ban green card holders from the US in their first month of office?

                              So there’s option three: Agreed to stay on during the transition (she was, for instance, the one that signs off on FISA warrants. The job is somewhat critical) to keep the country running smoothly, with no expectation that the proverbial poo would hit the fan.

                              Then, of course, she did exactly what she’d told Sessions himself when he asked her about this exact scenario at her confirmation hearing. Which he approved of.

                              I’m gonna keep repeating that, because it’s important: The man up for the actual AG slot covered this EXACT scenario with Yates, and she did exactly what she said she’d do — a answer which the guy up for the AG position thought was the right one..

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                        • It’s not a White House matter, it’s an executive branch matter, which the AG is a part of – specifically in this role – and the president is in charge of.

                          I might feel differently if it were something clearly unconstitutional, but it’s not. That’s something to courts are going to decide. And while parts of it are unconstitutional, it seems likely the general thrust of it is and the most questionable parts (green cards, etc) are severable.

                          I might be willing to accommodate her, if possible, by saying that she herself need not appear in court and do it, but that’s not what’s at issue (it’s expected she would delegate it) and it’s up to her office to do it or make sure it is done.

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                          • But it’s not a veto point. The WH has options if the AG decides this, yes? Other people who can defend it in court? The EO doesn’t whither on the vine or anything.

                            This isn’t some unique circumstance either. Sessions himself proposed this exact scenario to Yates when she was confirmed, and was lauding the notion of refusing to defend an unconstitutional law or order.

                            The incoming AG actually thought this scenario both important enough to use some of his time on during her confirmation, AND felt that refusing to defend the law was the correct choice.

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                            • I honestly don’t know what other options the White House has. It’s not really an issue because we’re talking about what is actually the Attorney General is there to do. Maybe it’s not a “veto point” in that the WH can hire somebody else to do what is actually the AG’s job, or maybe the AG can actually prevent others from doing it because it is their job. Maybe that will end up in court, thereby hobbling the administration’s ability to actually defend the EO.

                              OR! Trump could fire her. Which is what he did and what I would have done, thereby sidestepping the entire above conflict(s).

                              So, even if not fully a “veto point,” it is the ability to seriously gum up the works. Which can be justified perhaps in the case of criminal activity and coverups, but not policy or philosophical differences which are handled by the electorate and the courts.

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                              • Use WH counsel. Hire outside counsel. Use third parties. Wait until they had an AG they knew would back them even if he thought it was an unconstitutional pile of poo.

                                Or hey, run the EO past DoJ like normal and get their feedback before acting.

                                There’s lots of things they could have done.

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                                • There are things they could have done*, and that I would like to think I would have done, but failure to do so does not convert this into a lateral negotiation nor require him to assign someone for whom it is *not* their job to do what *is* her job to do, nor hire outside council.

                                  There are also things she might have done differently.

                                  But what’s done is done, and it’s clear that they don’t have the ability to have a working relationship, even within a week. That means it’s on her to resign, or him to fire her. If she doesn’t resign, I fire her.

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                                  • Okay, I want to point out again that this exact same scenario came up during her Congressional confirmation. In which the guy up for AG in specific quizzed her about this exact scenario (DoJ being faced with pressure to defend or enact unlaw of unconstitutional orders) and her willingness to say “No”.

                                    He was very, very clear that “Saying no” in those situations was important.

                                    So…what changed?

                                    Actually I’ll tell you what. Any competent administration would have run this EO past more than OLC, including DHS and DoJ, and would have gotten a lot of pushbacks and “Nos” on several bits — like their attempt to apply it to green card holders, the fact that it’s a stealthy attempt at religious criteria — which is known to be unconstitutional and unlawful — and the final EO, if the WH wanted it out, would have either been modified to feedback OR DoJ would have seen some quiet reshuffling.

                                    Except the Trump administration isn’t competent, so it happened in public. She’s not the first, although the last incident to leak publically was Dubya and…crap, who was his AG? The anti-porn guy. Ashcroft? Anyways, it was over an EO on domestic surveillance that they were pushing. I think Comey actually was involved in the pushback on that.

                                    So, again, the only thing unusual here is the public airing of the refusal NOT the refusal — it’s happened before and the fact that it might happen was important enough to make her confirmation hearings — but that the Trump administration was absolutely too incompetent to prevent this from becoming an ugly, public mess.

                                    So tl;dr: What Yates did has happened before. It’s a part of the AG’s job at DoJ, in fact. It normally doesn’t happen publicly, but that’s on the WH here not DoJ.

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                                    • The whole “But look at what Sessions said” thing would have more effect if I held Sessions in high regard.

                                      If Bush had insisted on going forward, what would Bush have done? What would Ashcroft have done? Well, Bush wouldn’t have hired a private security firm. Ashcroft would have resigned. And if Ashcroft didn’t resign, Bush would likely have fired him.

                                      There are circumstances where an administration’s demand is clearly illegal or unconstitutional – we may run up against that soon! – but this isn’t that, for the most part. Aspects of it are really problematic, and may be struck down by the courts, but this isn’t a black and white issue.

                                      The other thing is that Bush and Ashcroft had an ongoing, working relationship. I would be more reluctant to fire that guy than someone who is going to be gone in a week.

                                      But what would I do if I were Trump under these circumstances? I’d ask for her resignation. If she didn’t resign, I’d publicly thank her for her willingness to serve, express sorrow that things didn’t work out, and reassign or fire her.

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                                      • You don’t need to hold Sessions in high regard — the fact was, it wasn’t a controversial question nor an unexpected one.

                                        Like I said, a competent administration would have run this by DoJ (and DHS and ICE and a bunch of other people who didn’t see it until after it was signed) beforehand, and dealt with objections internally.

                                        Hope many AG’s have said this, in private, to the WH and gotten things changed? I’m guessing “quite a lot” because, as I noted, this was not an unexpected or unusual question. Nobody was shocked at it or her answer.

                                        Ashcroft was notable in that the pushback got leaked (most likely because the WH apparently went after his signature during an illness or right after surgery, I forget which and Comey had to come running to prevent them from pressuring a sick man to change his mind). Not that the pushback happened.

                                        Which is my whole point: You’re acting like Yates went off the rails, created some “new” veto point, tried to gum up the system in a weird way and that was “bad”. I’m pointing out that what she did was her job and that what you think of the order’s legality, it’s not your call to make — but it was hers.

                                        And that this isn’t a “new” call, it’s an old one. It’s been part of the job for a very long time. It’s just part of the job that’s generally done privately when drafting an order, not after implementing it!

                                        Yates had to make a public call because the WH skipped most of the procedure — which included the chance for her to make her position clear privately. Nobody’s even sure, last I checked, that they even ran it by OLC.

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                                        • Saying that I would fire Yates for doing what she did doesn’t mean that I think she went off the rails. It means that you can’t do what she did and stay my attorney general. We can even do the “It’s not you, it’s me” thing if we want.

                                          But there is absolutely no way she keeps her job. There is no way I bend over backwards and hire someone else to do her department’s job. Even for an appointee, I’d probably come to the determination that this relationship wasn’t working. For a temp? No way.

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                                          • And I’m saying “You’re not the President, and your employee is not the Attorney General”.

                                            The AG isn’t the President’s stenographer, and shouldn’t be.

                                            I mean that’s the whole takeaway from the Saturday Night Massacre. Yes, both of those men resigned rather than obey — but they weren’t faced with a fait accompli in the form of an already signed Executive Order.

                                            If Trump had just fired Cox, citing his Executive Branch powers, would they have resigned? Or would they have stated his firing was unlawful, and refused to support the President’s position?

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                                            • You know what Richardson and Ruckelshaus were not able to do? Disobey an order from the president and keep their job. That despite the fact that unlike here, the law was explicitly on their side. Once Nixon ordered it, there was no other way for it to end but compliance, resignation, or termination. Unlike a special prosecutor, they serve at the pleasure of the President.

                                              I mean, Nixon could have backed down, and should have, but that’s only because the underlying order was wrong. The same can be said of Trump, but that’s a matter of opinion or legally unresolved (depending on which aspect of the EO we’re talking about).

                                              To say that Trump shouldn’t have fired Yates is to say that his EO was wrong. Which isn’t very interesting. To anyone who thinks the EO is right (and legal), as the president does and when I talk about “I would if I were him” I assume that I do, then Yates had to go. I’m not going to work to find a way to work around the personal or legal opinion of a temp.

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