Losing John Yoo on executive power is like having Napoleon give you a nudge over being a bit full of yourself. Even the author of the torture memos, who provided George W. Bush with cover on a series of executive actions that ranged from merely beyond the law to beyond reason, thinks that Trump is playing this poorly.
Faced with President Trump’s executive orders suspending immigration from several Muslim nations and ordering the building of a border wall, and his threats to terminate the North American Free Trade Agreement, even Alexander Hamilton, our nation’s most ardent proponent of executive power, would be worried by now.
Tunefully worried. But it’s not really Trump’s isolationist policies and his anti-Muslim fear mongering that have Yoo concerned.
As an official in the Justice Department, I followed in Hamilton’s footsteps, advising that President George W. Bush could take vigorous, perhaps extreme, measures to protect the nation after the Sept. 11 attacks, including invading Afghanistan, opening the Guantánamo detention center and conducting military trials and enhanced interrogation of terrorist leaders. Likewise, I supported President Barack Obama when he drew on this source of constitutional power for drone attacks and foreign electronic surveillance.
Note that war, torture, holding people without trial, crushing privacy, and robot bombs all fall in the category of things Yoo considers peachy.
But even I have grave concerns about Mr. Trump’s uses of presidential power.
Though not the concerns you may think.
Getting John Yoo to raise a finger of “perhaps too much” is itself an accomplishment. That Trump has managed to bring on this concern in merely two weeks is amazing—in an awful sort of way.
There are some areas where Yoo dings Trump for simply overstating his abilities.
Take his order to build a wall along the border with Mexico, and his suggestion that he will tax Mexican imports or currency transfers to pay for it. The president has no constitutional authority over border control, which the Supreme Court has long found rests in the hands of Congress. Under Article I of the Constitution, only Congress can fund the construction of a wall, a fence or even a walking path along the border. And the president cannot slap a tax or tariff on Mexican imports without Congress.
So all those times Republicans in Congress complained about how Obama was not policing the border, they were really the ones responsible and were just blaming Obama for their own failures? That seems so … typical. It also seems clear that the 9 percent approval-rated Congress thinks the 43 percent approval-rated Trump is their ticket to whatever, whatever, whatever, and lower taxes. So they’ll sign on to any number of whatevers, because lower taxes.
But strangely enough, after saying that the president isn’t responsible for the borders, Yoo does believe that Trump’s Muslim ban is legal. Or that it would be legal. Except for the problem of how Trump’s pal Rudy Giuliani let slip the freakin’ obvious fact that the Muslim ban was designed to be a ban on Muslims.
Had Mr. Trump taken advantage of the resources of the executive branch as a whole, not just a few White House advisers, he would not have rushed out an ill-conceived policy made vulnerable to judicial challenge.
In other words, if Trump had been a bit more discreet, he could have had this thing doctored up with language that accomplished the same thing, but which could be defended on some dubious legal ground—like the torture memos. Because that is John Yoo in a nutshell.
Actually, the whole article reads more like a job application than a critique.
Mr. Trump’s firing of the acting attorney general, Sally Yates, for her stated intention not to defend his immigration policy, also raises concerns. Even though the constitutional text is silent on the issue, long historical practice and Supreme Court precedent have recognized a presidential power of removal. Mr. Trump was thus on solid footing, because attorneys general have a duty to defend laws and executive orders, so long as they have a plausible legal grounding. But the White House undermined its valid use of the removal power by accusing Ms. Yates of being “weak on borders and very weak on illegal immigration.” Such irrelevant ad hominem accusations suggest a misconception of the president’s authority of removal.
It’s tempting to read into this that Yoo, and perhaps other Republicans, realize that Trump has gone too far. That’s a way too generous an interpretation.
Yoo’s criticisms are of Trump’s brusque style, not his vile substance. If Trump just got people to write up his tweet-based policies with more recursive, dissembling, confusing language, he could generate enough legal confusion to allow every immoral action to pass by without the pesky interference of the judiciary.
If only he had John Yoo.