Commentary: Tennessee Attorney General Abuses His Position to Offer Political and Not Legal Opinion

 

Disregarding the Constitution, foundational principles of federalism, immigration law and his statutorily prescribed duties, Tennessee’s Attorney General Herbert Slatery III, the state’s chief legal advisor, has used his position and office to advance a political agenda on behalf of illegal aliens in the state.

Forty-three states elect their Attorney General unlike in Tennessee whose state Constitution directs the State Supreme Court to make the appointment for a term of eight years. Elected Attorney Generals are viewed as more accountable to the public and more independent from the governor. Elected AGs are also viewed as having more credibility should a situation arise requiring investigating wrongdoing by any state official including the governor.

Prior to his appointment as Tennessee’s Attorney General, from 2011 – 2014, Slatery, also from Knoxville, served as counsel to Governor Haslam. “In addition to providing legal advice to the Governor, he oversaw the process for judicial appointments, coordinated the legal affairs of the executive branch for the Governor, assisted in the development and implementation of legislation, and reviewed requests for executive clemency and extradition.”

Using his official letterhead, Slatery informed Sens. Alexander and Corker that Tennessee would not challenge the DACA program despite admitting the likelihood of prevailing. Slatery’s legal opinion is that the program “suffers from the same constitutional infirmities” as the Obama DAPA amnesty program which was stopped when twenty-six states including Tennessee, filed suit in federal court.

Sounding more like a constituent instead of a state’s attorney general, Slatery urged Alexander and Corker to support the “DREAM Act of 2017” which would offer amnesty and a path to citizenship for other groups of illegal aliens in addition to the DACA eligible.

There is another way: Your colleagues, Sen. Lindsey Graham (R- S.C) and Sen. Richard Durbin (D-Ill), have introduced legislation addressing the DACA program (S. 1 61 5). Whether this particular legislation is a viable solution is a matter for congressional debate. It is not a comprehensive answer to our immigration policy challenges, but it would be a very good start. As I have admired your careers over the years, I have perhaps been most impressed at how you take on difficult problems and lead us to a better place. I encourage your serious consideration of this proposed legislation.

Slatery admits that he is abandoning the law in favor of what he says is the “human element”:

This request [by the coalition of state attorneys general to President Trump to rescind the DACA program] was made for many of the same reasons Tennessee successfully challenged the Deferred Action for Parents of Americans (DAPA) program. Notably, the leading sentences in that complaint were ‘This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution.’ While characterized often as anti- immigration, this action was really an attempt to preserve the authority of Congress to make policy and pass legislation. Stated simply, the executive branch lacks the authority to issue directives contrary to laws passed by Congress.

The States argued successfully that the executive branch by simply composing a written directive could not grant wholesale deferral of prosecution to over 4.5 million people who were not in the country legally…

We have every reason to believe the States’ legal challenge to the DACA program would yield a similar outcome. It suffers from the same constitutional infirmities. Our Office has a track record of consistently challenging actions when we believe the federal executive branch has overreached its authority and adversely affected Tennessee’s interests.

There is a human element to this, however, that is not lost on me and should not be ignored. Many of the DACA recipients, some of whose records I reviewed, have outstanding accomplishments and laudable ambitions, which if achieved, will be of great benef,rt and service to our country. They have an appreciation for the opportunities afforded them by our country.

Slatery came to this conclusion after meeting with Stephanie Teatro, co-director of the Soros-funded TN Immigrant & Refugee Rights Coalition (TIRRC). Teatro, who is not a lawyer, was interviewed by The New Yorker for details of this meeting.

State Rep. Bill Dunn was also interviewed by The New Yorker, but none of his comments were included in the article. Dunn’s impression was that the writer viewed Slatery’s decision to withdraw from the lawsuit as a tough, but courageous one:

I told him that before he nominated our AG for a Profiles in Courage award he needed to be aware that the AG is selected by the Supreme Court and is not accountable to the voters.

I believe a lawsuit in this instance is imperative because it goes to the heart of how our constitutional government is run and especially the upholding of the separation of powers. I pointed out that all dictators start out by ignoring or neutering the legislative branch. The branch most in touch with the people. I used what is happening in Venezuela as a current example of Presidents acting as the legislature and the disastrous results.

One of the greatest threats to our democratic republic is activist judges and lawless executives acting as legislators. President Obama crossed this well defined line with DACA and he needed to be challenged.

As to the AG and politics, I believe that since the AG was removing his name from the suit he had to give an explanation. If his explanation is true than I can’t fault a man for telling the truth.

The duties of Tennessee’s AG are prescribed by the General Assembly and nowhere in state law is Slatery provided leeway to offer a political opinion. With regard to DACA and refugee resettlement, the positions taken by Slatery are more in line with Governor Haslam than a product of independent legal analysis.

Both Slatery and Rep. Mark White who continues to try and secure in-state college tuition for illegal aliens in Tennessee, have both said that the DACA issue is “not about immigration.” White uses political diversion to pretend that his issue is about education. Ironically, Slatery, who is choosing not to uphold the law, admits that the DACA issue is “about the rule of law, presidential power, and the structural limits of the U.S. Constitution.’

The DACA issue in Tennessee is also about state law that prohibits giving illegal aliens access to state benefits. Tennessee’s “Eligibility Verification for Entitlements Act” classifies in-state tuition as a state benefit and incorporates federal law that says only U.S. citizens and “qualified aliens” (which do not include illegal aliens), can access state benefits.

Since 2013, over two thousand DACA grantees have had their status revoked due to gang affiliation and criminal activity including “alien smuggling, assaultive offenses, domestic violence, drug offenses, DUI, larceny and thefts, criminal trespass and burglary, sexual offenses with minors, other sex offenses and weapons offenses.”

In 2015, GOP gubernatorial candidate Mae Beavers introduced a resolution that would have put a measure on the 2018 ballot to amend the state’s constitution and allow the state’s Attorney General to be elected instead of appointed by the state’s Supreme Court.