Editor's note: This column was authored by Alex Grass.
Acting Attorney General Sally Yates did a very smart thing … for her career. In her refusal to enforce President Trump’s immigration ban against a number of dangerous countries—Iran, Sudan, Iraq, Syria, Yemen, Libya and Somalia—Yates has rocketed into the progressive political exosphere.
She may hope to someday become Senator Yates.
A number of misconceptions have been swirling around Yates’ controversial memorandum, and President Trump’s subsequent decision to fire her and add Dana J. Boente as the new acting attorney general. Here are a few brief arguments dispelling those mythic notions.
The first myth is that somehow, this Obama appointee has suddenly grown to love our system of checks and balances.
Quite aside from the question of the Trump immigration order’s lawfulness, Yates’ concern is “whether any policy choice embodied in the Executive Order is wise or just.” But it’s neither the duty nor the prerogative of the president’s agents to choose not to enforce a policy based on the wisdom or justness of that policy.
Her insubordination is a revival-in-miniature of the Obama administration’s assault on the separation of powers. Simply put, this is “an act of sabotage” intended to make governance more difficult for the Trump administration, with the added bonus that Yates gets to genuflect in an act of progressive piety. The idea that Yates, an attorney appointed to the Obama Department of Justice, is concerned about presidential overreach is, to be generous, risible.
Professor David Bernstein of the Antonin Scalia Law School has done a marvelous job cataloguing the various Obama-era breaches of the rule of law. But consider these constitutional slights, which are particularly offensive to checks and balances:
The Obama administration allowed a Department of Education bureaucrat to write a secret memorandum compelling schools to scramble the gender requirements in their bathrooms. The memo was unpublished. Just to be clear, such a delegation of power to a low-level government functionary gives that bureaucrat the same legislative power as Congress.
A similar disdain for legislative prerogative has permeated the Affordable Care Act, which the Obama administration changed unilaterally 43 times, according to the Galen Institute. The former President also decided to change immigration laws unilaterally, a move that Ilya Somin, a supporter of Obama’s immigration policies, said “highlights the alarming extent of executive discretion in the modern state.”
That Yates (and Obama) had no compunction about the preceding assaults on constitutional checks and balances, but now feel a pang of conscience because Trump is president, is hard to take seriously.
The second myth is that Donald Trump is evil, and that Obama would never do something so similarly cruel as banning immigrants.
For a moment, cast aside any doubts you may have about the economic and national-security wisdom of an all-out stoppage of immigration from the seven banned countries, and try to imagine a world where a president doesn’t allow refugees into the United States. It shouldn’t be hard for you to imagine, since that’s the tack that former President Obama took for nearly his whole time in office. As the Wall Street Journal editorialized: “Here are the number of Syrians his Administration admitted: fiscal year 2011, 29; 2012, 31; 2013: 36; 2014, 105; 2015, 1,682. Only in 2016 did he increase the target to 13,000, though actual admissions haven’t been disclosed. Mr. Obama also barely lifted a hand to help resettle translators who worked with GIs in Iraq or Afghanistan.”
It takes a special kind of hypocrite—Barack Obama—to leave office and only ten days later accuse his successor—Donald Trump—of religious discrimination. The richness of that hypocrisy is made sweeter because the refugee crisis that precipitated this controversy was caused by Obama’s disastrous failures in Syria.
And finally, the last myth to be dispelled is that this controversy is about principles, not politics.
For a moment, ignore the false claims that this whole row is “unprecedented.” (Andrew Johnson, FDR, and Nixon all tangled with subordinates or other appointees they wanted removed.) The simple fact is that Sally Yates has a lot to gain politically from a gambit like this.
Many careers have been kick-started or boosted by political grandstanding. Rand Paul proved his libertarian bona fides by filibustering against the PATRIOT ACT. Elizabeth Warren touted her class warrior credentials in a speech that would help rocket her to the U.S. Senate. And just recently, (in a move that actually was unprecedented) Sen. Cory Booker testified against his colleague Jeff Sessions’ nomination to be attorney general, prompting Sen. Tom Cotton to say that he was “very disappointed that Senator Booker has chosen to start his 2020 presidential campaign by testifying against Senator Sessions.”
Say what you like about Sally Yates, but now her political star is rising.
Alex Grass is a Young Voices Advocate and a student fellow at the Floersheimer Center for Constitutional Democracy at Benjamin N. Cardozo School of Law. He lives in Brooklyn with his wife Gina, and his two kids, Joseph and Lucia.
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