President Trump is consulting a controversial Bush-era lawyer to write new executive policies.
John Yoo, a former deputy assistant attorney general during President George W. Bush’s administration, confirmed to the Guardian that he’s in communication with White House officials after writing an opinion that argued the Supreme Court’s decision on the Deferred Action for Childhood Arrivals program, or DACA, “makes it easy” for presidents to circumvent the law.
“If the court really believes what it just did, then it just handed President Trump a great deal of power, too,” Yoo said in an interview. “The Supreme Court has said President Obama could [choose not to] enforce immigration laws for about 2 million cases. And why can’t the Trump administration do something similar with immigration — create its own … program, but it could do it in areas beyond that, like healthcare, tax policy, criminal justice, inner-city policy. I talked to them a fair amount about cities, because of the disorder.”
The Washington Examiner reached out to the White House for comment.
In an interview with Fox News anchor Chris Wallace, Trump said he’s preparing to sign new executive policies, including a “full and complete” healthcare plan and immigration package that he argued the Supreme Court empowered him to do, echoing the opinion written by Yoo.
“The decision by the Supreme Court on DACA allows me to do things on immigration, on healthcare, on other things that we’ve never done before. And you’re going to find it to be a very exciting two weeks,” the president said.
Yoo is best known for writing a series of memoranda outlining “enhanced interrogation techniques” to be used question detainees after the 9/11 terrorist attacks. Those techniques were widely criticized as torture.
In a conversation with Axios, Yoo, now a law professor at the University of California, Berkeley, said Chief Justice John Roberts’s opinion for the high court on DACA “sets out a roadmap about how a president can use his prosecutorial discretion to under-enforce the law.”
In his article for National Review, Yoo expanded on the matter by using an analogy, saying the Supreme Court’s decision effectively permits Trump to declare a nationwide right to carry firearms through executive order, and ignore enforcement of firearm laws.
“Suppose President Donald Trump decided to create a nationwide right to carry guns openly. He could declare that he would not enforce federal firearms laws, and that a new ‘Trump permit’ would free any holder of state and local gun-control restrictions,” Yoo began in his National Review article. “Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two.”
Yoo argued that the president, as written in Article II of the Constitution, cannot fulfill his duty to “take Care that the Laws be faithfully Executed” while enforcing an unconstitutional immigration executive order, referring to DACA.
“The highest form of the law of the land is the Constitution. Under this duty, the president cannot enforce an executive order that violates the Constitution — here, the vesting of the power over immigration in Congress,” Yoo wrote.
“The Obama administration claimed that it could still establish DACA and DAPA as a matter of prosecutorial discretion. The constitutional obligation that presidents enforce the law also includes their right, due to limited resources and time, to set enforcement priorities. Prosecutors cannot bring cases for every violation of every federal law at all times,” Yoo continued, writing that former President Barack Obama’s claim “flew in the face of the Constitution” by removing the enforcement of immigration law.
“If that were true, President Trump could simply restore the preexisting enforcement levels as a matter of his own exercise of prosecutorial discretion. Each new president’s right to reverse the exercises of executive power by his predecessors means that no level of enforcement can bind any future administrations. If Obama were indeed free to set immigration removal levels to 50 percent of past cases, or even zero, Trump had the constitutional right to restore removals to those that prevailed under the Bush administration,” Yoo wrote.
Last month, the Supreme Court ruled in a 5-4 decision that the way Trump repealed the DACA program was illegal, claiming it violated the Administrative Procedure Act. However, the Supreme Court did not contend that the president did not have the executive power to disband the program.
