In May 1972, Attorney General Elliott Richardson appointed Archibald Cox as a special prosecutor to investigate the Watergate break-in. In October, Cox subpoenaed President Richard Nixon, seeking access to taped conversations Nixon had in the Oval Office. Nixon refused but offered to let a notoriously hard-of-hearing Senator listen to the tapes and summarize them. Cox, understandably, declined the “compromise.” The next day, Saturday, October 20, Nixon ordered the AG to fire Cox. He refused and resigned in protest. Nixon then ordered the Deputy AG to fire Cox. He also refused and resigned. Nixon finally found Robert Bork willing to fire Cox. Shortly thereafter, calls for Nixon’s impeachment reached a crescendo.
I don’t mean to indicate that what you did last night to Sally was commensurate with the Saturday Night Massacre, but the parallels are hard to ignore, as is that framed letter from Nixon in your office saying what a great leader you’d be.
Let’s be clear, the order is, at best, borderline legal but completely contrary to the spirit of the law and the Constitution. The Immigration and Nationality Act holds, in part, that:
…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
The language of the statute seems to clearly bar actions like your most recent executive order. You can’t refuse to issue a visa just because someone lives in a particular country just as you can’t refuse to issue a visa because they’re black.
Now, I’ve seen several folks make the argument that a different provision of the law gives you the discretion you need. That section says that
Whenever the President finds that the entry of any aliens or class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation…suspend the entry of all aliens or any class of aliens as immigrants or no immigrants, or impose on the on the entry of aliens any restrictions he may seem to be appropriate.
That seems to give you pretty broad authority, but there’s one problem – the non discrimination clause says that there are only three places in the law that it doesn’t apply, and this “detrimental” clause isn’t one of them.
Maybe it’s in the weeds, but it’s at least an issue that, on the face of it, can be decided by the Courts. They could easily rule that the broad discretion of 8 U.S.C. 1182(f) supersedes the nondiscrimination clause, but it would clearly be outside the bounds of typical statutory construction. Specific provisions of the law are exempted from the non discrimination clause, but this isn’t one of them. As such, the presumption should be that, if Congress wanted the President to be able to discriminate on the basis of race or national origin, it would have drafted helaw that way. It didn’t write it that way, so it’s presumed that’s not what they wanted.
I go into this detail mainly to demonstrate that, outside of any other arguments related to religious discrimination, your order is on shaky legal ground. As for religious discrimination, there are usually two basic tests – does there appear to be discriminatory intent and was there a disparate impact. Your prior statements advocating for a Muslim ban are a prima facie case for discriminatory intent, particularly when paired with your recent interview with CBN in which you said there would be a preference for Christians seeking entry. On those bases alone, you’d find it hard to prevail in Court, without even getting to the question of impact.
You are clearly within your rights to dismiss a political appointee who doesn’t align with your policy preferences. The underlying concern for me, though, is the lack of apparent concern for the rule of law. If you were concerned about legality, you could have asked Sally for a clear statement outlining why she believes the order is, on its face, clearly illegal. After all, the clear historical standard for whether DOJ defends an action in court is clear illegality, not a failure to be convinced of legality, which is what Sally used. You could have then directed her that, short of meeting that standard, the DOJ should defend the order in Court. If she didn’t want to order the attorneys under her to do so, she would be free to resign, but at least you would have provided her the opportunity to make a case as to why the order was indefensible. Now, your firing of her seems geared more towards steamrolling dissent, regardless of legal concerns. That’s a bad place to be in.
To be clear, I think all public servants have a duty to stand up and speak out about those things that contradict our values as a nation, not just when orders are illegal (though they have a duty to do that as well). Dissent is part of democracy, and the bureaucracy is meant to protect democracy, and never the politician in charge. When you punish well-intentioned and reasoned dissent, you have a chilling effect on the proper functioning of our government.
What happens when the next official refuses to accede to your whims because they believe it is contrary to the law? Is there a back bench of Robert Borks ready to step in at every agency to do your bidding, legality be damned? What is the standard? Is it total fealty or bust? Sean’s statement about State Department employees definitely seems to imply as much.
It’s a horrible precedent, and I’m afraid it foreshadows much more dangerous times ahead.