On Monday, in a hearing before the Senate Judiciary Committee, Sen. Ted Cruz (R-TX) exposed former Acting Attorney General Sally Yates’s ignorance of the law, and the partisan nature of her decision to refuse to enforce President Donald Trump’s executive order suspending travel from several terror-prone countries.
One would not know that from the liberal media, which thinks Yates won the exchange, but Cruz proved his case decisively.
Here’s why — in short: Cruz brought up the law that authorized the executive order, and Yates did not recognize it. She then answered by referring to another law, which does not supersede the first. She then tried to argue that the order was unconstitutional, but Cruz pointed out that her argument was a partisan one, driven by her own policy views. She then claimed no court would enforce the order — which is contradicted by the fact that one actually did.
The left thinks Yates won the exchange because she was well-prepared with a set of talking points, and offered a snappy response. That shows how desperate Democrats are to salvage something out of the hearing — which failed to produce any new evidence to back up their Russian conspiracy theories — and also how urgently they need to find new champions.
It does not change the fact that Cruz was completely correct, and Yates was completely wrong.
Here is a more detailed explanation, with a transcript of the relevant portion of the exchange, as well as a video (which the leftist who posted it called “Sally Yates Owns And Humilates Ted Cruz During Russia Hearing”).
Cruz: Well, are you familiar with 8 U.S.C. section 1182?
Yates: Not off the top of my head, no.
Think about that for a moment: the government’s chief lawyer was unfamiliar with the law that was the basis for the executive order, and which has been the basis of the government’s arguments in court in every one of the cases that she later cited. To a lay observer, asking about “8 U.S.C. section 1182” may sound like asking about a minor league baseball player’s batting average in 1987. But a senior lawyer involved in the issue should know exactly what Cruz was talking about — especially as the statute is referred to explicitly in the second version of the executive order.
Yates later said she is familiar with that law, but the fact that she did not recognize it suggests she was so biased that she had not bothered to familiarize herself in any detail with the legal arguments on the other side of the issue.
Cruz: Well, it is the binding statutory authority for the executive order that you refused to implement, and that led to your termination. So it is certainly a relevant and not a terribly obscure statute. By express text of the statute, it says, “whenever the president finds that the entry of any alien or of 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?
Yates: I would, and I am familiar with that, and I’m also familiar with an additional provision of the INA [Immigration and Nationality Act] 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, and that’s been part of the discussion with the courts with respect to the INA, is whether this more specific statute trumps the first one that you just described.
The law Yates cited was passed in 1965 as an amendment to the law Cruz cited, which was passed in 1952. There are some lawyers who argue that the 1965 amendment supersedes the provisions Cruz cited. However, no president has ever treated the law that way. In fact, every single Democratic president since then has used the provision that Cruz cited, specifically to exclude or restrict travelers from specific countries from entering the United States.
An essay in Time magazine — of all places — pointed out some examples earlier this year. Most notably, President Jimmy Carter barred Iranians from traveling to the United States, with rare exceptions, using the same provision that Cruz cited.
Logically, Yates’s argument also makes no sense. If the U.S. cannot discriminate among immigrants on the basis of nationality, that would invalidate federal immigration policy as a whole — hardly Congress’s intent.
Yates: But my concern was not an INA concern here. It rather was a constitutional concern, whether or not this — the executive order here violated the Constitution, specifically with the Establishment Clause, with Equal Protection and Due Process.
The argument that Trump’s executive order was unconstitutional is, at best, debatable, and most likely just wrong. Even if he had opted for an explicit “Muslim ban,” as he suggested he would after the Paris terror attacks in 2015 (before amending that policy later), that would also have been constitutional, as Breitbart News pointed out at the time. Our immigration laws already discriminate on the basis of religion, both for and against particular faiths.
Cruz: There is no doubt the arguments you laid out are arguments that we can expect litigants to bring, partisan litigants who disagree with the policy decision of the president. I would note, on January 27, 2017, the Department of Justice issued an official legal decision, a determination by the Office of Legal Counsel that the executive order, and I’ll quote from the opinion, “The proposed order is approved with respect to form and legality.” That’s a determination from OLC on January 27th that it was legal. Three days later, you determined, using your own words, that although OLC had opined on legality, it had not addressed whether it was “wise or just.”
Cruz pointed out exactly why Yates deserved to be fired. Her job was not to make an argument against the order, but to enforce the order, even if there was a chance that it would be found unconstitutional, as long as there was some basis to claim that it was constitutional and lawful, which the Office of Legal Counsel determined it was.
The Obama administration took many actions that were unconstitutional, and which the Department of Justice nevertheless defended to the hilt. In N.L.R.B. v. Noel Canning (2014), for example, the U.S. Supreme Court ruled unanimously that President Barack Obama had violated the Constitution by arrogating to himself the power to declare when the Senate was in recess, for the purpose of making presidential appointments.
Did Sally Yates offer to resign when the Department of Justice moved ahead with defending that hopeless case? Of course she did not.
Yates: And I also said, in that same directive, Senator, that I was not convinced it was lawful. I also made the point that the office of OLC looks purely at the face of the document, and again makes a determination as to whether there is some set of circumstances under which some portion of that EO would be enforceable, would be lawful.
There was, in fact, such a set of circumstances, as proven by the decision by a federal court in Massachusetts to deny a temporary restraining order against the executive order. The judge found that the president “has exercised his broad authority under 8 U.S.C. § 1182(f),” and added that “this Court declines to encroach upon the ‘delicate policy judgment’ inherent in immigration decisions.” Democrats do not like to cite that case, for obvious reasons.
Yates: They, importantly, do not look outside the face of the document. And in this particular instance, where we were talking particularly about a fundamental issue of religious freedom, not the interpretation of some arcane statute, but religious freedom, it was appropriate for us to look at the intent behind the president’s actions. And the intent is laid out in his statements…
Note how Yates dismissed the law that was the basis for the executive order as “some arcane statute.” She also decided that the president’s statements on the campaign trail — statements that he later walked back — were somehow within her purview. She cited religious freedom — but, again, did she resign when the Department of Justice was called upon to defend Obama’s intrusions on religious freedom, as in the Little Sisters of the Poor case?
She did not. Her answers to Cruz reveal that Sally Yates did not care about the law, did not care about her oath, and did not care about the Constitution as much as she cared about taking a political stand against the new president.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He was named one of the “most influential” people in news media in 2016. He is the co-author of How Trump Won: The Inside Story of a Revolution, is available from Regnery. Follow him on Twitter at @joelpollak.