President Donald Trump is relying on an outlier interpretation of a recent Supreme Court decision to assert broad new powers as he prepares to sign a series of executive orders in the coming weeks.
The expansive view of presidential authority has been promoted by John Yoo, a Berkeley Law professor known for writing the so-called “torture memos” that the George W. Bush administration used to justify using “enhanced interrogation” techniques after the Sept. 11 terror attacks.
Yoo told The Associated Press on Thursday he’s had multiple conversations with senior administration officials in which he’s made the case that a June Supreme Court ruling that rejected Trump’s effort to end the Deferred Action for Childhood Arrivals program, or DACA, opened the door to enormous new presidential power.
“I said, ‘Why not just take the DACA opinion itself and do a search-replace. And every time it says ’DACA’ … replace it with ‘skills-based immigration system,’” Yoo said he told the White House. “This gives President Trump an alternative to create such a program, at least for a few years.”
Not long after the conversations, Trump began promising a series of new executive orders on a range of issues.
“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,” Trump said in an interview on Fox News Sunday, predicting “a very exciting two weeks.”
The court concluded in its 5-4 decision that the Trump administration did not take the proper steps to end DACA. The program was created by former President Barack Obama and provided legal protections to some 650,000 immigrants brought to the country as children.
Chief Justice John Roberts’ opinion castigated the administration for cutting legal corners, finding its conduct “arbitrary and capricious” under a 1946 federal law that guides how agencies develop regulations and policies.
Roberts, joined by the court’s four liberals justices, notably did not conclude one way or the other whether DACA is legal. But Yoo has made the case in several articles that the court, in its ruling, invalidated one of the main checks on presidential power: the ability of new presidents to immediately undo executive action enacted by their predecessors.
Under the court’s decision, he wrote in Newsweek, “presidents can now stop enforcing laws they dislike, hand out permits or benefits that run contrary to acts of Congress and prevent their successors from repealing their policies for several years.”
In National Review, Yoo suggested Trump could, for instance, now create a nationwide right to carry guns openly by refusing to enforce federal firearms laws and then creating a new “Trump permit” that would free any holder of local gun restrictions.
Liberal legal scholars said Yoo, who served as deputy assistant attorney general in the Justice Department’s Office of Legal Counsel under Bush, was wildly off-base and reading far too much into a decision that focused on the administration’s sloppiness.
But Yoo said that soon after publication of the articles, he received a call from White House officials he declined to name. “I wasn’t expecting to get a call. I wasn’t trying to influence the White House,” he said, noting his articles were intended to criticize what he thought the court got wrong.
Nonetheless, he shared his opinion with the White House that the decision gives Trump the power to reorient American immigration policy “toward one that is focused on merit, skills and assets,” as Trump favors, without having to reach a deal with Congress, which has rejected such measures.
And Yoo argued the same reasoning could apply in other areas, such as health care, giving Trump the ability, for instance, to stop spending federal resources to enforce an employer contraceptive mandate.
Several White House officials stressed that while Yoo’s writings have been spotted around the West Wing, his opinions only reinforced discussions that already were taking place.
Indeed, Trump and members of his administration extending back to former White House counsel Don McGahn have long held expansive views of presidential powers. Trump has repeatedly asserted new authority in executive orders and flouted congressional oversight efforts, from redirecting funds appropriated by Congress to asserting broad privilege to ignore subpoenas.
“When somebody is the President of the United States, the authority is total,” he declared in April.
Trump, in his Fox interview, seemed eager to flex the new powers he claimed the DACA decision had granted — though it remains unclear whether he’ll follow through.
“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,” he asserted. “The Supreme Court gave the president of the United States powers that nobody thought the president had, by approving, by doing what they did.”
Critics called Yoo’s ideas disingenuous and unconstitutional.
Victoria Nourse, a Georgetown University law professor, said, “Yoo’s track record should warn you that he is given to claims that are out of the mainstream.”
Yoo is relying on a false premise: that the court upheld Obama’s creation of the DACA program in the first place, said Stephen Vladeck, a law professor at the University of Texas.
“To call it an embarrassing analysis is to dramatically understate just how nefarious it is,” Vladeck wrote in an email.
On Twitter, Harvard Law School professor Laurence Tribe wrote that Yoo’s take on the DACA decision “is a wildly irresponsible and, of course, unconstitutional ‘reading’ of” the decision.
Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project, said Yoo’s take was at best “a badly mistaken reading of what the court did. At worst, it’s a willful twisting of the court’s words.”
During the Bush administration, Yoo wrote a 2001 memo advising that the military could use “any means necessary” to hold terror suspects. In a 2002 memo, he advised that treatment of suspected terrorists was torture only if it caused pain levels equivalent to “organ failure, impairment of bodily function or even death.” Yoo also advised that the president might have the constitutional power to allow torturing enemy combatants.
