Extract from The Guardian
The firing of acting attorney general Sally Yates is one of doubtless
many crisis points that will show us just how robust American democracy
really is
Viewed
– with amazement and concern – from Europe, the events of the past 24
hours have an obvious explanation. The Americans elect a reality TV star
to the highest office in the land, and this is what they get: an
individual as strong-willed, deed-driven and capricious as his media
persona, who hesitates not a moment before telling a senior law officer
who has crossed him that she is fired.
But something more interesting – and perhaps in the end more productive – is surely going on. What we are watching, while resembling in many ways reality TV, is an accelerated, distilled working out of the US constitution – a constitution that this untutored president is stress-testing to its limits.
The dismissal of Sally Yates from her post as acting attorney general is just the latest, nor will it be the last of the crisis points. In a small way, it illustrates an abiding weakness of the US electoral system, where the transition is never really complete by the time the new president is inaugurated.
By rights, Yates should already have been replaced by Trump’s nominee for attorney general, Jeff Sessions. But while some Trump nominees thought to be problematical have sailed through their congressional hearings, the confirmation of Sessions – an ardent foe of illegal immigration among other things – has been held up. Trump has thus been deprived of an obedient attorney general at the very time he most needs one.
Yates, as an Obama appointee, was hardly going to find herself in tune with an edict that amounts to a blanket exclusion of seven countries’ nationals. The only surprise, perhaps, is that she went so far as to use her “acting” power to oppose this executive order. What is more, she put her objections in writing, advising Justice Department lawyers that the new president’s instruction order should not be defended in the courts and was quite probably unlawful.
It has been easy, during Trump’s first helter-skelter week, to gain the impression that a US president has the power effectively to rule by decree. As executive order followed executive order – the majority, it appeared, composed by clever lawyers to minimise legal difficulties – there seemed to be almost no practical constraints on what the president could do. So long as the orders were restricted to policy and required no spending subject to congressional approval, Trump seemed to have a clear run.
All right, so “the people” – or some of them – came out to protest: the women’s march on the day after his inauguration, and the spontaneous protests at airports across the country as the effects of the seven-country ban started to make themselves felt. But Trump dismissed these furious bursts of dissent with little more than a wave of the hand.
He has tried the same with Yates – removing her and drafting in Dana Boente, US attorney for the eastern district of Virginia, in her stead. Trump may try to send a reinforcing message when he announces his nominee for the supreme court today. But, together with the actions of a federal judge, who blocked part of the immigration order on Sunday, the episode represents a widening faultline within and across the different branches of government.
Appointees may be political, but most judges are no pushovers – especially in matters of the constitution. So the duel between the new president, his judges, and principled servants of the executive branch, is likely to go on.
In one way, the eruption of such a conflict so early in the Trump administration is disconcerting, especially for those in Europe not used to such tussles. While it exposes some of the weakness of the US system, however, it also highlights some of its strengths. There are real constraints on presidential power; a US president cannot rule by decree.
But each president is free to test those limits. And the people, by choosing to protest or acquiesce, have a role, too. Trump is forcing the United States to define itself; to decide anew what is acceptable and what not. That feels dangerous. But it also feels exhilarating, and it is not necessarily a bad thing.
But something more interesting – and perhaps in the end more productive – is surely going on. What we are watching, while resembling in many ways reality TV, is an accelerated, distilled working out of the US constitution – a constitution that this untutored president is stress-testing to its limits.
The dismissal of Sally Yates from her post as acting attorney general is just the latest, nor will it be the last of the crisis points. In a small way, it illustrates an abiding weakness of the US electoral system, where the transition is never really complete by the time the new president is inaugurated.
By rights, Yates should already have been replaced by Trump’s nominee for attorney general, Jeff Sessions. But while some Trump nominees thought to be problematical have sailed through their congressional hearings, the confirmation of Sessions – an ardent foe of illegal immigration among other things – has been held up. Trump has thus been deprived of an obedient attorney general at the very time he most needs one.
Yates, as an Obama appointee, was hardly going to find herself in tune with an edict that amounts to a blanket exclusion of seven countries’ nationals. The only surprise, perhaps, is that she went so far as to use her “acting” power to oppose this executive order. What is more, she put her objections in writing, advising Justice Department lawyers that the new president’s instruction order should not be defended in the courts and was quite probably unlawful.
It has been easy, during Trump’s first helter-skelter week, to gain the impression that a US president has the power effectively to rule by decree. As executive order followed executive order – the majority, it appeared, composed by clever lawyers to minimise legal difficulties – there seemed to be almost no practical constraints on what the president could do. So long as the orders were restricted to policy and required no spending subject to congressional approval, Trump seemed to have a clear run.
All right, so “the people” – or some of them – came out to protest: the women’s march on the day after his inauguration, and the spontaneous protests at airports across the country as the effects of the seven-country ban started to make themselves felt. But Trump dismissed these furious bursts of dissent with little more than a wave of the hand.
He has tried the same with Yates – removing her and drafting in Dana Boente, US attorney for the eastern district of Virginia, in her stead. Trump may try to send a reinforcing message when he announces his nominee for the supreme court today. But, together with the actions of a federal judge, who blocked part of the immigration order on Sunday, the episode represents a widening faultline within and across the different branches of government.
Appointees may be political, but most judges are no pushovers – especially in matters of the constitution. So the duel between the new president, his judges, and principled servants of the executive branch, is likely to go on.
In one way, the eruption of such a conflict so early in the Trump administration is disconcerting, especially for those in Europe not used to such tussles. While it exposes some of the weakness of the US system, however, it also highlights some of its strengths. There are real constraints on presidential power; a US president cannot rule by decree.
But each president is free to test those limits. And the people, by choosing to protest or acquiesce, have a role, too. Trump is forcing the United States to define itself; to decide anew what is acceptable and what not. That feels dangerous. But it also feels exhilarating, and it is not necessarily a bad thing.
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