When I was at UC Berkeley I had no interactions with John Yoo, the law professor who enabled the George W. Bush administration’s use of torture in Afghanistan and elsewhere. The only time I worked on something involving him happened more than a decade ago, when he was threatened and needed protection beyond what the university normally provides. I had no qualms with assisting; people who have done evil still deserve safeguarding from physical harm, even those who argue against extending the same care to others.
Plus, for what it’s worth, I heard he’s an affable colleague and good teacher.
But here we are late in the first — and, I pray, only — term of the Trump administration, and I fear my successor may also have to worry about Yoo’s physical safety, because he’s cooperating with the White House in formulating legal cover for Trump’s dictatorial impulses.
Speaking purely — and I suppose, in his mind, innocently — as a legal scholar, Yoo suggests in a recent National Review article, as well as in a Newsweek op-ed (I didn’t know Newsweek still existed), that the Supreme Court’s decision in Department of Homeland Security v. Regents of the University of California, which invalidates Trump’s rescission of Deferred Action for Childhood Arrivals (DACA) and a related program, opens the door to unilateral presidential decrees that cannot be quickly undone, even if they’re blatantly illegal.
Yoo points out that “though federal immigration law requires the deportation of the DREAM-ers and their parent aliens, the [Supreme] Court allowed President Barack Obama to refuse to enforce it by simple executive fiats.” So what’s to stop Trump from issuing executive fiats in defiance of federal laws he doesn’t like?
(Yoo actually supports DACA. And it’s not lost on him that the victorious party in this case is his employer.)
The best peer-level criticism of Yoo’s position I’ve found comes from Stephen Vladeck, a law professor at the University of Texas. (Additional objections from legal scholars can be found in this Politifact article.) Vladeck argues that the Supreme Court did not uphold DACA’s legality, it rejected the process the Trump administration followed to rescind DACA. I suspect Vladeck is right, and were Chief Justice Roberts called upon to explain his majority opinion, he would affirm that the Homeland Security v. Regents decision wasn’t meant to open a loophole wide enough to drive Trump’s despotic ambitions through.
But I’m afraid that won’t stop Trump from using Yoo’s interpretation to impose draconian measures that make Portland look trivial. For him it’s a no-lose proposition: if he’s re-elected, he becomes a legitimate dictator (his rule by fiat has been endorsed by the voters), and if he loses, his cruel, divisive legacy will take the Biden administration years to undo.
Maybe the most cynical advice Roy Cohn gave his protégé Trump was this: you’re rich and powerful so do what you want, because it takes years for the courts to catch up with you — assuming they ever do. Now comes John Yoo seconding the message; he admits he’s discussed his interpretation of Homeland Security v. Regents with senior administration officials. “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 now crows.
It’s one thing to write articles about potential unintended consequences of Supreme Court decisions. It’s another to answer phone calls from an aspiring autocrat’s legal lapdogs with “How can I be of service?” Yoo may be a genial colleague. He may be a great teacher. He may be a top-flight Constitutional scholar. And he is definitely undeserving of intimidation or violence. But he’s a national disgrace, and his continuing support for unchecked presidential power demonstrates how dangerous legal reasoning is without an ethical foundation.