During testimony before a Senate subcommittee today in the Trump-Russia probe, former Acting Attorney General Sally Yates got into an interesting exchange with Senator Ted Cruz about her failure to enforce President Donald Trump’s executive order.
Yates’ decision not to enforce the travel ban led to her being terminated from her employment.
Senator Cruz, after reading statue 8 U.S. Code § 1182,
By the express text to the statute, it says quote “whenever the president finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants or impose on the entry of aliens any restrictions he may deem appropriate.
Would you agree that that is broad statutory authorization?
Sally Yates answers in response,
I would, and I’m also familiar with that, and I am also familiar with an additional provision that says “no person shall receive preference or be discriminated against in issuance of a visa because of race, nationality, or place of birth”.
That, I believe was promulgated after the statute that you just quoted.
Yates’ response was extremely popular on progressives on Twitter because she gave an answer to a question rather than burst out in tears (or whatever it was they expected Yates – a lawyer – to do):
— McSpocky™ 👽🖖 (@mcspocky) May 8, 2017
— #DemForce🇺🇸🏳️🌈 (@DemForce) May 8, 2017
However, although Yates provided an answer to Cruz’s question, it does not seem to be a very popular answer among those with actual legal scholarship.
Josh Blackman, Associate Professor of Law at the South Texas College of Law, generally argues that “By all accounts, 1182(f) provides all of the authority the President needs to exclude classes of migrants based on their nationality”.
Alan Dershowitz of Harvard Law argued against the people (like Ms. Yates) who found the argument unconstitutional based on what they thought the intent of the executive order was rather than the actual text of the executive order:
The idea of focusing so heavily on campaign rhetoric essentially saying look ‘If Obama had issued the very same order with the same words it would be constitutional but if Trump issues it it’s unconstitutional because he said some things about Muslims in the run up the campaign or Rudy Giuliani said some things or some other people said some things’ – that’s not the way the law is supposed to operate.
Perhaps most puzzling about Ms. Yates’ argument is that she invokes the Constitution on behalf of people who are not American citizens.
As can be heard in the video for example she mentions that she felt Trump’s executive order violated the Establishment Clause and the Equal Protection Clause.
But George Washington University Law School Professor John Banzhaf argues, “The Constitution … does not reach out and apply and protect people in foreign countries.” That is the generally prevailing legal opinion.
Furthermore, neither of Trump’s executive orders on immigration issues a “ban” on the issuance of visas but rather it temporarily suspends that issuance of visas, as it says in the text of the executive order.
Yates is no dummy clearly. And when this case finally is heard before the Supreme Court there will be some judges who will agree with her.
But it seems to be the prevailing view that when the case is ultimately heard, Trump will win.