Monday, January 30, 2017

Jonathan Adler On The "Protecting The Nation" Order

This is interesting:
A few quick observations. First, the statement seems to indicate that the executive order was reviewed by the Justice Department’s Office of Legal Counsel, which apparently concluded that the executive order was lawful. Second, Yates does not claim that she cannot defend the executive order because it is unconstitutional or because the Justice Department would be unable to offer good-faith arguments in defense of its legality. To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not “wise or just.” This is quite significant. I am not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis.
If Adler is right about that, this seems to indicate that Yates is, at least in a significant sense, in the wrong. He also claims that she should have resigned and then explained her reasons for doing so, as per Richardson and Ruckleshaus and the Saturday Night Massacre.

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