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John Yoo’s Twisted Path to Trumpism

The conservative legal scholar’s first brush with a Republican presidency led to tragedy. His second encounter leans toward farce.

Mandel Ngan/Getty Images

Axios ominously reported over the weekend that President Donald Trump and his aides “are privately considering a controversial strategy to act without legal authority to enact new federal policies.” In a way, this isn’t really news. Trump once said that Article II of the Constitution gives him “the right to do whatever I want as president.” His administration often gives short shrift to legal mechanisms and statutory requirements in its haste to enact policy. This habit likely explains its impressive record of defeats before the federal courts.

That said, it’s not great if the president goes from stretching the limits of federal law to actively crossing its bounds. Even more ominous is the source of this new approach: John Yoo, a University of California, Berkeley, law professor and former Bush administration legal adviser. In a National Review article in June, Yoo criticized the Supreme Court for ruling against the Trump administration’s efforts to unwind the Deferred Action for Childhood Arrivals program. “According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult—especially for their successors,” he wrote.

At first glance, this reads like an admonition of Roberts and the four liberal justices who joined him. But the White House is apparently treating Yoo’s tortured interpretation of the ruling as an instruction guide for future policy maneuvers. Axios reported that Yoo has been in touch with the White House and that Trump himself has favorably cited the article. Now Yoo’s dubious legal views, which already defined one Republican administration’s moral and ethical outlook, may be poised to justify another’s abuses of power.

Yoo’s claims rest on a disfigured reading of the high court’s recent ruling. The Supreme Court did not explicitly rule that DACA itself was legal or illegal last month, only that Trump’s efforts to reverse it violated the Administrative Procedure Act, a federal law that sets out how executive agencies write new rules and regulations. Roberts, writing for the court, concluded that the Department of Homeland Security ran afoul of the APA by not providing enough justification for its sweeping move. “We do not decide whether DACA or its rescission are sound policies. The wisdom of those decisions is none of our concern,” the chief justice wrote. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”

In Yoo’s telling, the Supreme Court actually did something far more consequential than rule on a mere technicality. He argued the justices actually gave presidents broad discretion to enforce or not enforce federal laws and to enact potentially unlawful policies that their successors would be bound to carry out. “The Supreme Court has said President Obama could [choose not to] enforce immigration laws for about 2 million cases,” Yoo claimed in an interview with The Guardian, in which he also described his recent conversations with the White House. “And why can’t the Trump administration do something similar with immigrationcreate 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.”

To prove his point, Yoo laid out one possible maneuver in his article. “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 hypothesized. “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.” It’s easy to see why the White House found his arguments appealing.

Along the way, Yoo gave a highly favorable nod to Trump’s version of events. “This is doubly perverse because Trump supports a legislative solution that would allow DACA and [Deferred Action for Parents of Americans] beneficiaries to remain in the country,” he wrote. “Nevertheless, Trump reversed DACA and DAPA because President Obama had no constitutional authority to impose the two policies.” Trump’s animus toward immigrants apparently played no role in the matter, in Yoo’s telling. And while Trump has said that he would be open to a legislative fix for DACA recipients, past efforts to pass one have shown that the White House is more interested in using Dreamers as a bargaining chip to fund a wall on the southern border or rewrite federal immigration law to reflect that animus.

The White House’s interest in Yoo’s legal analysis comes at a fortuitous time for the law professor. His new book, Defender in Chief, comes out next week. I have not yet been able to obtain a copy of it, but the publisher casts it as a forthright defense of Trump’s constitutional vision. “Far from considering Trump an inherent threat to our nation’s founding principles, Yoo convincingly argues that Washington, Jefferson, Madison and Hamilton would have seen Trump as returning to their vision of presidential power, even at his most controversial,” the publisher claims. “It is instead liberal opponents who would overthrow existing constitutional understanding in order to unseat Trump, but in getting their man would inflict permanent damage on the office of the presidency, the most important office in our constitutional system and the world.” I am skeptical of this thesis, to say the least.

Yoo’s Trumpian turn is far from surprising. In both government service and academic life, he has advanced an untrammeled vision of executive power that brushes aside most constraints imposed upon presidents by Congress or international law. His highest-profile work came during George W. Bush’s first term in office, when he worked in the Justice Department’s Office of Legal Counsel, which provides legal advice to other parts of the executive branch. In that role, Yoo helped draft a series of memos that effectively authorized torture of terrorism suspects and justified warrantless surveillance of Americans, arguing that the president’s wartime powers trumped almost all other constraints.

The Bush Justice Department later disavowed the torture memos, which did not become public knowledge for years. In 2009, ethics lawyers in the Justice Department’s Office of Professional Responsibility concluded that Yoo and Jay Bybee, who served as the OLC’s chief at the time, had committed “professional misconduct” in writing the torture memos. David Margolis, a career DOJ lawyer at the time, later overrode that conclusion while castigating Yoo for his role in the matter. “While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client,” he wrote.

There are already signs that the White House is embracing Yoo’s mutilated logic. In an executive order issued on Tuesday, Trump laid the groundwork to exclude undocumented immigrants from the ongoing census when the executive branch reports the numbers to Congress. The Constitution itself is fairly clear about who gets counted for apportionment in the decennial undertaking: It explicitly states that representatives are allotted according to “the whole number of persons in each State, excluding Indians not taxed.” Since Congress automatically granted citizenship to all Native Americans by 1924, the “whole number of persons” now truly means the whole number.

The Trump administration apparently disagrees. It argues that it retains some sort of power to determine exactly who counts for apportionment purposes. “Determining which persons should be considered ‘inhabitants’ for the purpose of apportionment requires the exercise of judgment,” the executive order stated. The Fourteenth Amendment’s language is unequivocal, and the Supreme Court unanimously acknowledged four years ago that House seats must be apportioned by total population. But the White House does not care. Tuesday’s executive order on the census, Trump said in a statement, “reflects a better understanding of the Constitution.”

Even bolder measures may be on the horizon. Axios’s report came after an interview between Trump and Fox News anchor Chris Wallace over the weekend. Most commentary on the interview focused on Trump’s boast that he “aced” a cognitive test used to identify dementia in older patients. At another point, however, he foreshadowed that his administration would soon be using the Supreme Court’s ruling to justify major executive orders on other policy matters, including health care. Though he did not mention Yoo, his remarks mirrored the National Review article’s mangled reading of the DACA ruling.

We’re signing a health care plan within two weeks, a full and complete health care plan that the Supreme Court decision on DACA gave me the right to do. So we’re going to solvewe’re going to sign an immigration plan, a health care plan, and various other plans. And nobody will have done what I’m doing in the next four weeks. The Supreme Court gave the president of the United States powers that nobody thought the president had, by approving, by doing what they didtheir decision on DACA. And DACA’s going to be taken care of also. But we’re getting rid of it because we’re going to replace it with something much better. What we got rid of already, which was most of Obamacare, the individual mandate. And that I’ve already won on. And we won also on the Supreme Court. But the decision by the Supreme Court on DACA allows me to do things on immigration, on health care, on other things that we’ve never done before. And you’re going to find it to be a very exciting two weeks.

Legal scholars have long warned that Trump’s approach to executive power was dangerous and potentially lawless. In February 2017, one month after Trump took office, one of those scholars wrote an op-ed in The New York Times to describe his “grave concerns about Mr. Trump’s uses of presidential power.” He noted that the president “gave little sign” that he respected the separation of powers and described the Muslim travel ban as an “ill-conceived policy made vulnerable to judicial challenge” by Trump’s rushed effort to enact it. A “successful president,” he wrote, should be more appreciative of the executive branch’s limits.

“Otherwise, our new president will spend his days overreacting to the latest events, dissipating his political capital and haphazardly wasting the executive’s powers,” concluded John Yoo.