The Washington Post reports tonight:
“President Trump fired Acting Attorney General Sally Yates Monday night, after Yates ordered Justice Department lawyers Monday not to defend his immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world.
In a press release, the White House said Yates had “betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States.”
The White House has named Dana Boente, U.S. attorney for the Eastern District of Virginia, as acting attorney general. Boente told The Washington Post that he will agree to enforce the immigration order.
Earlier on Monday, Yates ordered Justice Department not to defend President Trump’s immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world, declaring in a memo that she is not convinced the order is lawful.
Yates wrote that, as the leader of the Justice Department, she must ensure that the department’s position is “legally defensible” and “consistent with this institution’s solemn obligation to always seek justice and stand for what is right.”
“At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful,” Yates wrote. She wrote that “for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.”
Yates is a holdover from the Obama administration, but the move nonetheless marks a stunning dissent to the president’s directive from someone who would be on the front lines of implementing it.”
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Nothing very surprising here. As noted in the article, Yates was a holdover from the Obama Administration. I suppose it’s a nice note of protest for her to end her DOJ tenure.
Nevertheless, Yates was basically a bystander and enabler as her boss, AG Loretta Lynch, and the Obama Administration created chaos in the U.S. Immigration Court system. Lynch and Yates, who, to the best of my knowledge neither set foot inside a U.S. Immigration Court nor took the time to speak in person with sitting judges, mandated enforcement-based priorities which attempted to race vulnerable women, children, and families from Central America seeking refuge in the U.S. through the process on an expedited basis without a reasonable chance to obtain lawyers or present their claims. Indeed, while she might be having pangs of conscience about defending the Trump orders, Yates’s DOJ lawyers had little difficulty defending the facially absurd contention that children who couldn’t even speak English could represent themselves on complex asylum claims in Immigration Court. Meanwhile, those who had been patiently waiting on the Immigration Court’s docket for years and were actually ready to proceed to trial on their claims for relief were arbitrarily “orbited” to the end of the line — years in the future. Yates and Lynch inherited a court system in crisis and left it a disaster.
Then, there was judicial selection. Yates presided over a “Rube Goldberg Type” glacial, hyper-bureaucratized, opaque, hiring process that effectively excluded those outside government from the Immigration Judiciary and the Board of Immigration Appeals, while leaving approximately 75 unfilled positions at the end of the Administration and a BIA structure and system that basically institutionalized and reinforced the aggressively anti-due-process procedures put in place by Attorney General Ashcroft during the Bush Administration. She and her boss left behind total chaos and a due process train wreck that mocked the noble vision of the U.S. Immigration Courts: through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all.
So, forgive me if I can’t get too enthused about Yates’s belated show of backbone. Her gesture was purely symbolic, and cost her nothing, since she was going to be replaced immediately upon Sessions’s confirmation. But, when she actually had a chance to improve due process in the U.S. Immigration Courts, she was, sadly, MIA.
PWS
01/30/17
Thank you for this nuanced analysis. Just a couple of days ago I was wondering what you would say about this situation we find ourselves in.
Thanks, Jennifer. It’s a difficult situation. So far, more priorities appear to have been piled on top of existing ones without any known plan for getting the half million plus cases already on the docket decided in a manner consistent with due process. It already appears that DHS ACCs will have much less discretion, or, perhaps, no discretion at all to remove cases with strong humanitarian factors from the docket or enter into stipulations. As you know, one of the reasons the Arlington Court has worked as well as it does has been the cooperative attitude among the private bar, the OCC, and the Judges on making practical decisions to keep the dockets moving and concentrate limited court litigation time on the truly disputed issues. Once everything is disputed all the time, the dockets are likely to get even more bogged down. At that point, “gimmicks” intended to clear out dockets without spending much time getting things right or providing due process sadly often come to the fore.That’s when the Fourth Circuit and other Federal Courts usually step in to slow the process down and insist on fair procedures and bettor records for them to conduct judicial review. But, as you know, that’s an expensive and time-consuming process. Getting it right at the initial level is always preferable.