Former acting Attorney General Sally Yates and Republican Sen. Ted Cruz of Texas got into a heated exchange Monday over President Donald Trump’s stalled executive order barring travel from several majority-Muslim countries.
Yates was removed as acting attorney general in late January after she publicly refused to defend the initial version of the executive order, which has since been revoked and replaced with a slightly scaled-back proposal that is also tied up in the courts.
Cruz began an exchange during a Senate Judiciary subcommittee hearing by citing a section of the Immigration and Nationality Act, which provides the president with broad power to suspend the entry of foreigners he believes would be detrimental “to the interest of the” US.
“Would you agree that that is broad statutory authorization?” Cruz asked.
“I would, and I am familiar with that,” Yates responded. “And I’m 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, and 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 … whether this more specific statute trumps the first one that you described.”
She said her original concern was not whether the executive order fit within the act, but whether it was constitutional.
Cruz fired back, saying her points would be the “arguments that we can expect litigants to bring — partisan litigants who disagree with the policy decision of the president.”
He then cited a Department of Justice issuance from the Office of Legal Counsel that approved the order “with respect to form and legality.”
“That is a determination from OLC on January 27 that it was legal,” Cruz said. “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.'”
Yates added that she said in the same directive that she was not convinced the executive order “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,” she said. “They importantly do not look outside the face of the document. And in this particular instance, particularly where we were talking about a fundamental issue of religious freedom, not the interpretation of some arcane statue, but religious freedom, it was important for us to look at the intent behind the president’s actions.”
“And the intent is laid out in his statements,” she said.
Cruz then added a final question, asking Yates if she was aware of any similar situation in the DOJ’s history in which an attorney general ordered the department not to follow a policy that had been approved by the OLC.
“I’m not,” she said. “But I’m also not aware of a situation where the OLC was advised not to tell the AG about it until after it was over.”