- The Washington Times
Sunday, July 26, 2020

President Trump is turning increasingly to executive action to push through his election-year agenda, buoyed by a Supreme Court ruling that the White House believes has expanded the president’s power of the pen.

The president, who promised an “exciting” few weeks of such action leading up to his formal renomination as the Republican Party candidate, signed five executive actions last week alone. Four orders Friday were aimed at lowering prescription drug prices, and one eliminated illegal immigrants in the census count for reapportioning congressional seats.


Other actions are planned on immigration and health care.

“The Supreme Court gave the president of the United States powers that nobody thought the president had,” Mr. Trump said recently.

Mr. Trump and his advisers believe the Supreme Court opened the door for longer-lasting unilateral executive actions with its 5-4 ruling on June 18, when the justices rejected the administration’s attempted rollback of President Obama’s Deferred Action for Childhood Arrivals immigration program.

The court’s majority said the Homeland Security Department couldn’t change the DACA policy. It said the Administrative Procedure Act requires an agency to demonstrate a more thorough evaluation of its options.

John Yoo, a George W. Bush administration official and now a professor at the University of California, Berkeley Law School, said the Supreme Court “has just laid out a road map for how, not just President Trump, but future presidents could enforce their own policies, just by not enforcing the immigration laws.”

In an interview, Mr. Yoo said the high court’s majority upheld Mr. Obama’s right not to enforce immigration law; therefore, other presidents should be able to take similar actions in other policy areas.

“If the power is good for Obama — no matter what we thought of it, I thought it was wrong — the Supreme Court has blessed it now. Why isn’t that power good for President Trump, too?” Mr. Yoo said. “If the court says you can do this in immigration law, why can’t you do it in criminal justice? If the court really believes what it says, and this is not just an anti-Trump screed, then it has to apply to other areas as well.”

Mr. Obama has defended the DACA policy as an exercise in prosecutorial discretion. He said the government shouldn’t spend its resources on deporting people who were brought to the U.S. illegally as children.

Mr. Yoo wrote an article detailing his views in the National Review, and Mr. Trump noticed it. He asked his advisers about it. High-ranking White House officials called Mr. Yoo.

“People from the White House called me after the article came out, and we had the same conversation you and I are having now,” Mr. Yoo said in the interview. “‘How does it work? You really think you could do this?’ I said the same thing: If you just take DACA out and replace it with skills-based immigration, or you replaced it with taxes … the [court’s] opinion should apply outside the narrow case of DACA. Otherwise, it’s not really an opinion founded on the law. It’s founded on politics.”

Mr. Yoo said the president could use the concept to declare, for example, a national right to carry firearms.

He also said he discussed with White House advisers the president’s options for deploying federal forces to cities such as Portland, Oregon, wracked by civil unrest.

The president obviously agrees with Mr. Yoo‘s reasoning.

“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,” Mr. Trump told Fox News’ Chris Wallace last week. “And you’re going to find it to be a very exciting two weeks.”

Some legal analysts disagree with Mr. Yoo. Harry Litman, a constitutional law professor at the University of California, Los Angeles, and former Justice Department official, called the theory “legally bankrupt” and “based on a wild overreading” of the prosecutorial discretion principle that underlies Mr. Obama’s original DACA order.

“Not every discretionary decision by the president is an exercise in prosecutorial discretion,” Mr. Litman wrote in the Los Angeles Times.

Laurence Tribe, a constitutional law professor at Harvard University and a vocal Trump opponent, tweeted, “This is how it begins. The dictatorial hunger for power is insatiable. If ever there was a time for peaceful civil disobedience, that time is upon us.”

He said Mr. Yoo‘s analysis of the DACA decision “is a wildly irresponsible and, of course, unconstitutional ‘reading’ of” the ruling.

Mr. Yoo, who authored legal justification in 2002 for the Bush administration’s “enhanced interrogation” techniques that included waterboarding of terrorism suspects, has written a book titled “Defender in Chief: Donald Trump‘s Fight for Presidential Power.”

In his book, Mr. Yoo says Mr. Trump is fighting to restore the powers of the presidency to an extent that the framers of the Constitution would have approved.

“They wanted each branch to have certain constitutional weapons, and then they wanted them to fight. And so they wanted the president to try to expand his powers, but they expected also Congress to keep fighting with the president,” he said.


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