Prof. Josh Blackman has this article at Politico with the above title:
Democrats are calling it the Monday Night Massacre. On Monday evening, Acting Attorney General Sally Yates announced that under her leadership, the Justice Department would not defend President Donald Trump's executive order on immigration. After acknowledging that the Office of Legal Counsel had reviewed the policy, and noting that the Civil Division could defend it in court, she personally rebuffed the president's judgment, which she did not find "wise or just." Yates, a career prosecutor appointed by Barack Obama, is now being hailed for standing up to a supposedly "tyrannical" president, according to a statement blasted out by the Democratic National Committee.In a stunning statement of journalistic ignorance, James Hohmann writes in the WaPo's Daily 202: "The decision to fire Yates also raises profound questions about Trump's view of the judiciary as an independent branch of government." Red hot news flash, Mr. Hohmann, the Department of Justice is in the executive branch. Whatever else the controversy may mean, it has nothing whatever to do with the independence of the judiciary.
But this has it wrong. If Yates truly felt this way, she should have told the president her conclusions in confidence. If he disagreed, she had one option: resign. Instead, she made herself a political martyr and refused to comply. Trump obliged, and replaced her with the U.S. attorney for the Eastern District of Virginia, Dana Boente. While this late-night termination may bring to mind President Richard Nixon's infamous "Saturday Night Massacre," the analogy is inapt. This is a textbook case of insubordination, and the president was well within his constitutional powers to fire her. Call it the Monday Night Layoff instead.
The federal government, unlike most states, has a unitary executive. "The executive Power shall be vested in a President of the United States of America." (Article II, ยง 1.) The U.S. Attorney General, unlike most state attorneys general, is not directly elected but instead has only delegated power from the President. As Prof. Blackman says, the proper course for Ms. Yates -- if she genuinely believed the orders were illegal -- was to advise the President of that in private and then resign if he insisted. Countermanding the President's order was not an option.
I'm not an expert in this area of law, but it is highly significant that, as Hohmann also reports, "Trump's order was reviewed by the Justice Department's Office of Legal Counsel before it was issued." If OLC said it was legal, it probably is.
None of this is to defend the order as a matter of policy or of politics. The matter was handled ineptly and caused needless harm to persons validly entering the country and needless damage to the Administration's political position. But Prof. Blackman is right; Ms. Yates was properly fired.
I'm not an expert in this area of law, but it is highly significant that, as Hohmann also reports, "Trump's order was reviewed by the Justice Department's Office of Legal Counsel before it was issued." If OLC said it was legal, it probably is.
None of this is to defend the order as a matter of policy or of politics. The matter was handled ineptly and caused needless harm to persons validly entering the country and needless damage to the Administration's political position. But Prof. Blackman is right; Ms. Yates was properly fired.
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