Now the Left Has a Martyr Like Kim Davis
Over the weekend, when I was on a birthday-induced news fast, President Donald Trump’s executive order on migrants from seven Middle Eastern countries turned into a fiasco in that sweet spot where incompetence and malevolence overlap. I missed most of the general frenzy. But I certainly didn’t miss the turmoil that ensued on Monday, when Acting Attorney General Sally Yates issued a letter ordering the Department of Justice not to defend the order. And then Trump, quite predictably, fired her. That is, after all, what he’s famous for.
This martyrdom was very well received by people who opposed the order. Paeans were written to the duty of public officials to stand up against illegal and immoral orders from above. Comparisons were made to the Saturday Night Massacre, in which a series of officials were ordered to fire the special prosecutor investigating President Nixon. It looks to me much less heroic: The left finally has its very own Kim Davis.
Davis was the Kentucky county clerk who was sent to jail in contempt of court when she refused to issue marriage licenses to same-sex couples. (Because her position was elected -- and because the Kentucky state legislators had no appetite for removing her against the wishes of their voters, she could not simply be fired.) As I wrote at the time, I believed that Davis had every right, and perhaps a moral duty, to refuse to issue a document she found morally abhorrent. What she didn’t have a right to do was to refuse while continuing to hold a job in which issuing such documents was a legal requirement. She chose her principles, and faced the consequences.
Yates, of course, served at the pleasure of the president, and no longer holds that job; she was quite easy to fire, so the comparison to Davis is not perfect. But as with Davis, the appropriate action for her to take was to resign a position she could not in good conscience carry out, not to brazenly defy her boss.
But wait. Isn’t Yates’s ultimate duty to the Constitution? OK, sure. But if her stance were in defense of the law, she would have cited … you know … the law. Instead, in her letter telling the department to not enforce the executive order, she wrote: “At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.” That sounds awfully like legal weasel words for “It’s probably lawful, but I don’t think it should be.”
Someone in her position who was standing on the law -- an acting attorney general who has had several days and a large staff with which to consider this question -- would cite legal authority in raising her concerns.
Jonathan Adler of the Volokh Conspiracy and Jack Goldsmith of the Lawfare Blog were equally unimpressed. Yates’s grandstanding is, as Goldsmith writes, a marked departure from the standards that the attorney general has historically used to decide whether to defend a policy in court, including during Yates’s own time:
The longstanding DOJ view is that DOJ will defend a presidential action in court if there are reasonable arguments in its favor, regardless of whether DOJ has concluded that the arguments are persuasive, which is an issue ultimately for courts to decide. DOJ very often -- typically -- defends presidential action in court if there is a reasonable legal basis for the action, even if it is not supported by the “best view” of the law. Indeed, that happened a lot in the Obama administration, as it does in all administrations.
Suddenly switching standards now that Trump is president is not a good look for his opponents. It suggests what many people already believe: that a cadre of coastal liberals have appointed themselves the moral guardians of the electorate, entitled to subvert the lawful wishes of their fellow voters.
Of course, there are some times when an official should refuse to obey the law. The classic example being genocide. But the “genocide” argument is getting hauled out way too early and too often. Trump’s executive order regards controlling immigration -- obviously well within the customary rights of a nation, and well short of the “genocide” standard. Attempting to equate the two is both foolish and tactically unwise.
If everything you disagree with is the Holocaust, then you can’t really criticize people for using the Nuremberg Defense. Sometimes, people do have to follow orders they disagree with, even orders that they think may result in someone being hurt. Because the alternative is a society of 300 million freelance legislators. And large-scale anarchy does not generally produce the greater moral good.
To this, Yates’s fans might fairly reply that Trump has already flagrantly violated the norms of his office, such as vetting his orders with the people who have to carry them out. And believe me, I share their concerns. To lay down a marker: If a court rules against Trump’s executive orders, and he defies that court (not foot dragging or weaselly legal interpretations, but Jacksonian “John Marshall has made his decision, now let him enforce it”), then I think Congress will have a moral duty to impeach him. And any bureaucrat who carries out such an order in defiance of the court will be engaging in lawlessness far worse than Yates did.
But if you are genuinely convinced that Trump is a thug who is going to try to erode the rule of law, then the best way to fight him is probably not to start sanding at the thing yourself. The best way to fight him is to scrupulously observe those norms. Because that’s how you gain the credibility to insist that he follow them too. After his shambolic first week in office, I’m pretty sure that’s credibility we’re going to need. It’s unwise to try to save civic society by torching the norms that support it.
Yes, anarcho-capitalists, I know about medieval Iceland. I do not think that the U.S. can be run on the same basis as a tiny, culturally homogenous island nation.
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