Our First “You’re Fired!”

Last night President Trump issued the first high-level “You’re fired!” of his new Administration.  It’s like The Apprentice all over again.

trump-scowlThe person being sacked was Sally Yates, who was serving as acting Attorney General prior to the confirmation of Trump’s selection, Alabama Senator Jeff Sessions.  An Obama appointee, Yates had issued an order to lawyers in the Justice Department instructing them not to make arguments defending Trump’s executive order on refugees and immigration.  Her order to the DOJ lawyers apparently was a unilateral decision, and it clearly wasn’t coordinated with the White House.  When the President learned of it he promptly dismissed Yates through a hand-delivered letter and replaced her with another acting AG, who immediately rescinded Yates’ decree and ordered DOJ lawyers to defend Trump’s immigration order.

In a letter, Yates stated that “[m]y responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts.”  The letter noted:  “In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right,” and concluded “[a]t 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.”  The White House, for its part, said that Yates was sacked for “refusing to enforce a legal order designed to protect the citizens of the United States.”

We’re going to be seeing a lot of this, I’m afraid.  Trump is taking actions that are making significant changes and provoking significant opposition.  Yates is of course entitled to her opinion about his immigration order — but I think her appropriate course was not to unilaterally act to thwart the order, but rather to publicly and noisily resign rather than enforce the order.  That’s the course that Attorney General Elliott Richardson took when President Nixon fired Watergate special prosecutor Archibald Cox, and I think it is the right approach.

As for the President, I think he really had no choice but to fire Yates for her failure to follow the policy set by his Administration.  Trump clearly means to shake things up, and he’s going to encounter resistance in the sprawling federal bureaucracy.  If Trump hadn’t acted in the face of the first act of disobedience, he would have given a green light to the actions of other dissenters within the Executive Branch of the government and undercut his ability to make the changes he thinks voters elected him to make.

People serving in government have a right to their own views, and to act their conscience — but Presidents have a right to expect their policies to be followed and faithfully executed, unless and until other coordinate branches of government act to stop them, through court orders or new laws.  It’s how the checks and balances in our tripartite government is supposed to work.  We should all haul out our Civics textbooks — we’re going to be getting an ongoing refresher course with this new President.

Billions and Billions of Czars

This article reports on the idea of having a “Pay Czar” to oversee executive compensation at entities that have accepted TARP funds.  (The proposed czar in this instance, Kenneth Feinberg, was one of my professors at Georgetown University Law Center.)  So far, President Obama has designated a number of “czars,” special envoys, and other non-confirmed officials to exercise extraordinary Executive Branch powers.  I don’t know how many czars the President has designated — it seems like a lot, which is why I can hear Carl Sagan of the Cosmos TV show era speaking of “billions and billions of czars” — but what is significant is that identifying people to act as “czars” skirts the confirmation mechanism that applies to other powerful Executive Branch officials.  If the President can routinely appoint officials who do not need to be confirmed by the Senate but who can nevertheless exercise wide-ranging powers, some of the essential “checks and balances” that are part of the constitutional process are lost.  The President is popular right now, and the same party controls the White House and Congress.  How would Congress feel if an unpopular President of another party were designating non-confirmed “czars” to exercise sweeping authority?

Another fundamental issue, of course, is why we need to designate (and pay) special individuals to oversee these programs.  Is the Treasury Department really so busy that there is no Assistant Secretary who can be held responsible for enforcing executive pay regulations as they apply to TARP fund recipients?