It has been just over two weeks since Donald J. Trump settled into the Oval Office and began a flurry of activity that has left heads spinning both inside and outside the Beltway. It's not so much the number of executive orders that has many people concerned -- President Obama had actually signed more at this point in his presidency -- it's the scope of Trump's orders. On everything from Obamacare to immigration Trump has taken it upon himself to do things that Congress should be doing.
One of the criticisms of Trump's misuse of executive actions comes from a surprising place: former George W. Bush legal advisor John Yoo. Yoo is one of the biggest proponents of something known as the "unitary executive," a theory that argues the president enjoys virtually limitless power in the realm of national security. Yoo is also the author of the so-called "Torture Memos" that established the supposed legal justification for Bush administration practices on the treatment of detainees.
But in a Monday op-ed for The New York Times, Yoo argues that Trump has gone too far with his executive actions. After indicating that he still supports the actions taken under both Bush and Obama in terms of national security operations such as prisoner interrogation and drone strikes, Yoo says, "[E]ven I have grave concerns about Mr. Trump’s uses of presidential power."
Yoo finds Trump's lack of knowledge surrounding the role of our government's three branches frightening.
During the campaign, Mr. Trump gave little sign that he understood the constitutional roles of the three branches, as when he promised to appoint justices to the Supreme Court who would investigate Hillary Clinton. (Judge Neil M. Gorsuch will not see this as part of his job description.) In his Inaugural Address, Mr. Trump did not acknowledge that his highest responsibility, as demanded by his oath of office, is to “preserve, protect and defend the Constitution.” Instead, he declared his duty to represent the wishes of the people and end “American carnage,” seemingly without any constitutional restraint.
He continues by pointing out that Trump has no authority under the Constitution to do things like build a border wall with Mexico or place a tariff on Mexican goods without the approval of Congress, despite taking or threatening executive action on those subjects. Then he gets to the order that has provoked the most outrage, the travel ban placed on seven Muslim majority countries. Yoo says he believes the ban "makes for bad policy," but in and of itself he thinks the order is legal. The problem, as he sees it, is that Rudy Giuliani confessed that Trump had indeed asked for a "Muslim ban." And that, of course, is unconstitutional.
Likewise, Yoo sees problems with Trump's firing of acting attorney general Sally Yates. Again, he says he believes Trump had the right to fire her for her refusal to defend his travel ban order. But he thinks Trump's attack on Yates undermined the legitimacy of his action.
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.
Yoo concludes by noting that it isn't necessary for a president to be a constitutional law scholar. But, he says the president should have an understanding of the role of the executive.
A successful president need not have a degree in constitutional law. But he should understand the Constitution’s grant of executive power. He should share Hamilton’s vision of an energetic president leading the executive branch in a unified direction, rather than viewing the government as the enemy. He should realize that the Constitution channels the president toward protecting the nation from foreign threats, while cooperating with Congress on matters at home.
It is quite clear that Yoo hasn't changed his mind about his belief in a dominant executive. But he wants that executive to at least go through the motions of working with the other branches of government instead of displaying hostility toward them as Trump has done.
John Yoo is no civil libertarian, and he practically wrote the book on executive overreach. So if Trump's executive orders are raising concerns with him that Trump is moving in an unprecedented and dangerous direction, the level of concern among the rest of us should be off the charts.
Please consider becoming a paid member of The Daily Banter and supporting us in holding the Trump administration to account. Your help is needed more than ever, and is greatly appreciated.