Update, 10:30 p.m.: Sally Q. Yates has been fired as acting attorney general.
Original post: On Monday, Acting Attorney General Sally Q. Yates ordered the Department of Justice not to defend Donald Trump’s recent executive order on immigration, which targeted Muslims from Muslim-majority countries. “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,” Yates wrote to DOJ lawyers. “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.”
Trump’s executive order, signed on Friday, led to the immediate detention of hundreds of people without any semblance of due process. Multiple judges blocked the government from detaining or deporting those singled out by the ban, holding that the order likely violated due process, equal protection, and the First Amendment. Civil rights groups are planning a broader challenge to the order’s constitutionality in an effort to block its enforcement indefinitely.
Government attorneys tasked with defending the ban over the weekend struggled mightily to explain in court how it could comport with the Constitution. Now they won’t have to—at least for a bit. Yates is an Obama appointee who will step down as soon as Attorney General Jeff Sessions is confirmed.
Yates’ decision gives Republican senators who oppose the executive order—among them Ben Sasse of Nebraska and Arizona’s Jeff Flake—an excellent reason to vote against Sessions’ confirmation. Sessions, who supports Trump’s immigration policies, is certain to reverse Yates’ determination and vigorously defend the executive if confirmed. Until then, however, the Department of Justice will not even try to defend this unlawful de facto Muslim ban.