Presidents rely on John Yoo for legal advice at their peril. Ask George W. Bush, who used Yoo’s memos from the Justice Department’s Office of Legal Counsel as justification for his program of “enhanced interrogation.” The memos were later repudiated by Bush’s own Justice Department.
Now another president is poised to seize on Yoo’s work as justification for . . . well, God knows what. President Trump, who likes the lawyers who tell him what he can do, not the ones who instruct him what he can’t, has seized on Yoo’s contorted argument that the Trump administration’s loss at the Supreme Court in the “dreamers” immigration case is actually a win — albeit a misguided one — for presidential power. Yoo, now teaching law at Berkeley, can find presidential power anywhere, for anything. But this argument is a stretch even for Yoo.
Yoo’s argument, in National Review, goes like this: President Barack Obama lacked the legal authority to implement, by executive fiat, the Deferred Action for Childhood Arrivals (DACA) program to protect from deportation dreamers brought to the United States as children. The Supreme Court, in a 5-to-4 decision by Chief Justice John G. Roberts Jr., joined by the liberal justices, found that while Trump had the authority to revoke DACA, he hadn’t gone through the proper administrative procedures to do so lawfully. Continue reading.