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 9/11 terror attacks.
Mr Yoo told the Associated Press on Thursday that he has had multiple conversations with senior administration officials in which he has made the case that a June Supreme Court ruling that rejected Mr Trump’s effort to end the Deferred Action for Childhood Arrivals programme (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’,” Mr Yoo said he told the White House. “This gives President Trump an alternative to create such a programme, at least for a few years.”
Not long after the conversations, Mr 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 healthcare, on other things that we’ve never done before,” Mr Trump said in an interview on Fox News on 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 programme 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’s 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.
Mr Roberts, joined by the court’s four liberal justices, notably did not conclude one way or the other whether DACA is legal. But Mr 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, Mr Yoo suggested Mr 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 Mr Yoo, who served as deputy assistant attorney general in the Justice Department’s Office of Legal Counsel under Mr Bush, was wildly off-base and reading far too much into a decision that focused on the administration’s sloppiness.
But Mr 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 criticise what he thought the court had gotten wrong.
Nonetheless, he shared his opinion with the White House that the decision gives Mr Trump the power to reorient American immigration policy “towards one that is focused on merit, skills and assets” as Mr Trump favours, without having to reach a deal with Congress, which has rejected such measures.
And Mr Yoo argued the same reasoning could apply in other areas, such as healthcare, giving Mr Trump the ability, for instance, to stop spending federal resources to enforce an employer contraceptive mandate.
Several White House officials stressed that while Mr Yoo’s writings have been spotted around the West Wing, his opinions only reinforced discussions that already were taking place.
Indeed, Mr Trump and members of his administration extending back to former White House counsel Don McGahn have long held expansive views of presidential powers. Mr 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. Mr Trump, in his interview with Fox News, seemed eager to flex the new powers he claimed the DACA decision had granted — though it remains unclear whether he will follow through.
“We’re signing a healthcare plan within two weeks, a full and complete healthcare 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 Mr 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.”
Mr Yoo is relying on a false premise: that the court upheld Mr Obama’s creation of the DACA programme 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,” Mr Vladeck wrote in an email.On Twitter, Harvard Law School professor Laurence Tribe wrote that Mr 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 Mr 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, Mr 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”. Mr Yoo also advised that the president might have the constitutional power to allow torturing enemy combatants.