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.
Thus, Yoo argues, “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.”
Under Roberts’s approach, “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.”
Expanding on this fantasy in Newsweek, Yoo adds that under the ruling, “Trump could unilaterally cut income taxes by 50 percent, accelerate infrastructure projects and cut red tape for starting new businesses. He could create a ‘recovery permit’ that would give businesses the right to sidestep agency red tape, burdensome environmental regulations and onerous obstacles to opening new enterprises.” All, says Yoo, because “according to the Supreme Court’s DACA opinion, presidents now can use their prosecutorial discretion to set the enforcement level for any federal law at zero.”
This is ridiculous. Yoo dismisses DACA as “illegal presidential action,” which is mighty rich coming from someone who concluded that the president, as chief executive, could not be bound by a criminal statute outlawing torture — indeed, could order the massacre of a village of civilians.
Yes, before Obama formulated DACA, he acknowledged limits on his power to act. “I’m president, I’m not king,” he said at one point. But in crafting the program, Obama relied on a careful opinion by the Office of Legal Counsel detailing how he could — and couldn’t — use prosecutorial discretion to defer immigration enforcement. The opinion emphasizes what the Supreme Court has described as “the broad discretion exercised by immigration officials”; it is confined to that context. In any event, a president has the sworn constitutional duty to faithfully execute the law, not to, as in Yoo’s fanciful hypotheticals, knowingly violate it.
No matter. Trump appears poised to out-Yoo Yoo. The law professor, at least, was warning of the dangers, as he saw it, of the Roberts opinion. Trump is taking Yoo as a potential road map for executive lawlessness. According to Axios, Yoo’s National Review piece has been “spotted atop Trump’s desk in the Oval Office,” and the president “has brought up the article with key advisers.” Yoo told the Guardian that he has been consulting with White House officials on the matter.
And so there was Trump, on Fox News Sunday, law-splaining to Chris Wallace: “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 solve — we’re going to sign an immigration plan, a health-care plan, and various other plans . . . The Supreme Court gave the president of the United States powers that nobody thought the president had, by approving, by doing what they did — their decision on DACA.”
Powers that nobody thought the president had, indeed. For good reason — the president doesn’t have them. Obama acknowledged he wasn’t king. Trump, of course, would like to be. But no Supreme Court ruling, no matter what Yoo might have to say about it, no matter what Trump may argue, has handed him the crown.