A Tale of Two Attorney Generals

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Yesterday President Trump fired the acting Attorney General Sally Yates. This came after she refused to defend the executive order in court as plaintiffs challenged portions of it. She said that the executive order was not consistent with her obligation to always stand for what is right nor does she believe that the executive order is lawful. Chuck Schumer said she was fired because she would not enforce an order she believed was illegal and unconstitutional.

This issue touches a pet peeve of mine on how Republicans and Democrats view the Attorney General and the powers of that office. This clash of ideas as to what the Attorney General actually is causes most of this friction.

Republicans 

Republicans see the Attorney General as someone who implements existing law and represents the government in these cases. Like any lawyer they would look at ambiguities in the law and interpret them based on the needs or goals of its clients. Inevitably there would be other people with other interpretations of the law  and they would argue about it in court. The Attorney General would represent the governments side and if he felt he couldn’t he would resign. Once the case is over the way the Supreme Court would interpret the law would stand and the Attorney General and the rest of the administration would follow. This would be the traditional view of an Attorney General.

Democrats

Democrats have a different view of the Attorney General. Aside from the duties I outlined that the Republicans expect the Democratic AG is also required to make a value judgement on the issue. Aside from judging the legality or constitutionality of each law the Democratic AG must also personally agree with the stances taken by each law and executive order or he could refuse to prosecute and instruct the DOJ itself to refuse to prosecute. Essentially the AG would have veto power over the rest of the administration. This of course presents problems when you have a democratic AG working with a Republican administration or vice versa.

Over and above veto power over the executive branch democratic AG’s are expected to wield veto power over the judicial and legislative branches as well. The supreme court can strike down all challenges to a law or order and can rule unanimously in its favor and the legislature can pass a bill with no opposing votes but if it does not meet the view of the AG they can unilaterally veto that by refusing to prosecute. Illegal immigration is a perfect example of this. The courts say you have the right to control your borders and there could be a law for it but if the AG does not want to punish anyone for breaking the law then it is moot.

The democrats are afraid of Trump being a dictator yet the amount of power they vest upon the AG is as close to a dictator as you will ever see. Once confirmed their version of the AG has the power of oversight on every other branch of government and can take unilateral decisions on that oversight. The AG cannot even be fired as he is acting on some sort of morality that is supposed to be unimpeachable.

 

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