If the views of the President are unlawful, should the AG say no to that? I doubt even Senator Sessions would object to someone who said no to a President issuing an illegal EO. Indeed, the question above was his question to Mrs Yates, with the implication that it was right to do so.
This says something important. The AG's primary duties are to the law and to the people. At a mundane level, he or she serves the President but not to the detriment of these higher obligations. The fact that a president fires a person discharging their duties tells you nothing about whether they were acting properly in doing so. It only tells you what the president has made a decision. Such decisions may be entirely arbitrary.
I am not going to discuss the legality of the EO. This is something for the courts to decide. The president has wide latitude in these matters. But nevertheless, he can run afoul of constitutional or legal protections. I am not sure if the Establishment Clause applies to immigrants. Some think so.
I am interested in Yates' reasoning, which discusses the importance of jurisprudence in the role of the AG.
Let's begin with her involvement in drafting, reviewing or approving the EO.
"Ms. Yates, like other senior government officials, was caught by surprise by the executive order and agonized over the weekend about how to respond, two Justice Department officials involved in the weekend deliberations said. Ms. Yates considered resigning but said she told colleagues she did not want to leave it to her successor to face the same dilemma." - NYT
The Office of Legal Counsel reviewed the EO and approved it (or provided its legal opinion if you prefer) as lawful on its face and properly drafted. This limited approval is something upon which Trump's executive branch relies.
It appears the AG was not consulted so that she was unable to furnish her independent advice in advance of the signing and publication of the EO. As Mrs Yates indicated, her advice isn't merely formal. It rises above the level of form and legality. It inhabits the realm of justice. She was clearly troubled that the EO potentially transgressed on this level. The president doesn't have to ask for her advice. But it is wise to do so as the AG is responsible for the EO's implementation.
She believed two things: first, that the statements of the administration and its surrogates (most likely Rudy Giuliani) pointed to the fact that the EO's text was motivated by a ruse. The ruse was to clothe the EO in the language of nationality in order to conceal a religious test. Giuliani has publically stated this and it is not my intention to call him a liar.
The religious test is in plain sight in the EO. It applies to Moslem majority countries and then, in talking about people applying for exceptional treatment, says “The religion of the individual [must be] a minority religion in the individual’s country of nationality.”
The second belief was that - given the unravelling of the ruse and the revelation of the religious test - the EO was either unjust or unwise, or both.
Is such a test "unamerican", unjust and unwise, she wondered?
Here's the statement of a supporter of the notion that it is unamerican to impose a religious test on immigrants - someone who managed to achieve a popular majority in his election: "I do not think a Muslim ban is in our country's interest. I do not think it is reflective of our principles, not just as a party but as a country. I think the smarter way to go, in all respects, is to have a security test and not a religious test."
That is an unambiguous statement. This person is now the leader of the House of Representatives. My guess is Paul Ryan knows a lot more than I do about the meaning of American principles. It is not my intention to call him a liar either.
So perhaps it is unjust and unwise to impose a religious test on immigrants. It is according to many of the sorts of Americans who have standing in these matters.
That's a discussion of justice.
So this took Mrs Yates into a discussion of the principles of jurisprudence. What is the law? What is its purpose? Perhaps this is too philosophical for a political environment. And too complex for a message board.
Maybe you have an opinion on that as well.
I guess I should also ask what you mean by "the actual rule of law". Sounds to me like you may be interested in the application of rule by law (mechanical employment of rules) rather than the rule of law (tethering of arbitrary power). No one would call the execution of orders by presidents (Trump, Obama, Bush, whoever) a strong example of the rule of law.
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