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Stop saying Yates owned Cruz, your legal ignorance is showing

Conservative Review

Did Sally Yates really “own” Ted Cruz?

Monday, Yates, the former acting-attorney general under President Trump who refused to enforce his moratorium on travel from Muslim-majority failed states, testified before the Senate Judiciary Subcommittee on Crime & Terrorism.

Jerry Dunleavy, writing for The Resurgent, helpfully transcribed the exchange (his post is well worth reading, as well):

TED CRUZ: Is it true that the Constitution vests the executive authority in the President?


 TED CRUZ: And if an Attorney General disagrees with a policy decision of the President – a policy decision that is lawful – does the Attorney General have the authority to direct the Department of Justice to defy the President’s order?

 SALLY YATES: I don’t know whether the Attorney General has the authority to do that or not but I don’t think it would be a good idea – and that’s not what I did in this case.

 TED CRUZ: Well, are you familiar with 8 U.S.C. Section 1182?

 SALLY YATES: Not off the top of my head.

 TED CRUZ: No? Well, it is the binding statutory authority for the executive order you refused to implement – and that led to your termination. So it certainly is relevant and not a terribly obscure statute. By the express text of the statute it says, quote, “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 for such a period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem appropriate. Would you agree that that is broad statutory authorization?

 SALLY YATES: I would and I’m familiar with that. And I’m also familiar with an additional provision of the INA that says, “No person shall receive preference or will be discriminated against in issuance of a visa because of race, nationality, or place of birth.” That, I believe, was promulgated after the statute you just quoted, and that’s been part of the discussion with the courts with respect to the INA – whether this more specific statute trumps the first one that you just described. And my concern was not an INA concern here, but was a constitutional concern – whether or not this executive order here violated the Constitution specifically with the Establishment Clause, and equal protection, and due process.

The Left is uproarious, hailing Yates’ answer as a “takedown” and a victory, saying she “owns” Sen. Cruz and humiliated him.

Every one of the above leftists and the others tweeting that Ted Cruz lost this debate, on the president’s statutory authority to issue the executive order, is legally ignorant.

To summarize, Senator Cruz is arguing that a 1952 statute grants the president of the United States to “suspend the entry of all aliens or any class of aliens” whatsoever when he deems it in the national interest to do so. Yates countered that a 1965 statute could “trump” the statute Cruz cited, limiting the president’s authority. But her justification for refusing to enforce the president’s executive order is that, in her view, the statute is unconstitutional.

First the constitutional question. As Conservative Review Editor-in-Chief Mark Levin explained on the radio Monday evening, the Office of Legal Counsel in the Justice Department concluded that the executive order was constitutional. If Yates objected to the order’s constitutionality, she had a duty to resign. She did not have the authority or the responsibility to defy the president, in whom the Constitution vests all executive power. So, her justification for insubordination is still wrong.

Now the statutory question, where the Left is declaring victory over Cruz. Is Yates right? Does the more recent statute 8 U.S.C. 1152(a)(1) “trump” 8 U.S.C. Section 1182? The short answer is no.

As law professor Josh Blackman explained back in February, “The later-in-time canon only applies if the statutes are in tension. They aren’t.”

First, 1152(a)(1) only affects the issuance of visas. It does not affect the broader power over “entry.” I discuss this topic at length in Part II. Thus, the statutes are not at all in tension with respect to Section 3(c) of the executive order, which limits “entry.” Congress gave the President the power to deny visas to any class of aliens he deems detrimental to the interests of the United States. Thus, if an alien is issued a visa, he can be denied entry, even at the last minute as he is about to cross into the airport terminal (for example, if an agent determines he submitted fraudulent information on his application).

Blackman goes on to argue that nothing in the provision Yates cited prohibits the government from revoking visas based on nationality. Further, he points out that according to the language of the statute, “The general policy is that visas should be issued without concern for nationality. But when the secretary deems it necessary (perhaps for national security concerns), he can adopt procedures for issuing visas based on nationality.”

Importantly, the statute Yates cited doesn’t even cover the whole breadth of Trump’s executive order. Blackman notes that 1152 only applies to “immigrant visas.” Refugees and anyone applying for a non-immigrant visa cannot lay claim to this statute whatsoever.

The bottom line is that President Trump had both the constitutional authority to issue his travel moratorium and also the broad statutory authority to do so. And Sally Yates did not have the authority under the Constitution or the laws to refuse to enact the president’s order. She is not a hero; she is an insubordinate who was justly fired.

To say that she “owned” Senator Cruz by pulling out her own arcane statute is to be ignorant of the law. The Left can lionize Sally Yates all it likes. But liberals look like idiots in doing so, as they advance a fatally flawed legal argument.

UPDATE: Professor Blackman posted his own response titled “No, Sally Yates did not stump Ted Cruz.” The Left really has no claim to celebrate. Nor do the faux-conservatives who hate Ted Cruz

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