Former Defender Of Executive Power Says Trump Has Gone Too Far

Former Justice Department official John Yoo helped find legal justifications for the Bush administration's use of torture after Sept. 11. But he says Donald Trump has pushed executive power too far.

RACHEL MARTIN, HOST:

You might remember the name John Yoo, the former Justice Department official is perhaps best known for authorizing the Bush administration's use of extreme interrogation techniques after 9/11. He's long argued for sweeping presidential powers in times of crisis. But in a recent op-ed in The New York Times, John Yoo declared that Donald Trump has gone too far.

John Yoo now teaches law at the University of California, Berkeley, which is where we reached him. Good morning. Thank you so much for being with us.

JOHN YOO: Oh, Rachel, it's a pleasure to join you.

MARTIN: There are a lot of voices out there claiming that President Trump's new immigration ban is the latest example of executive overreach. You have other concerns with that particular order, and we'll get to those. But first, where do you see examples of executive overreach?

YOO: Unfortunately, there's plenty of them. So President Trump has been out there saying that he's going to build a wall along the border with Mexico and force Mexico to pay for it. Under our Constitution, the president can't build a border wall, a fence, even a walking path along our border with Mexico unless Congress appropriates the funds.

The second one - he's been out there saying he's going to pull us out NAFTA, which is a statute that was passed by Congress under the Clinton administration. He can't terminate our trade agreement with Mexico and Canada unless Congress participates and cooperates.

MARTIN: But executive orders can be aspirational to some degree, can they not? I'm thinking of President Obama's executive order on closing down the U.S. prison at Guantanamo Bay, which he couldn't make happen unilaterally without congressional approval.

YOO: Yes, actually, I think it's the exact same thing, Rachel - that you've got the same kind of conflict between President Obama and Congress over keeping Guantanamo Bay open. And the reason it stayed open in the end was because Congress refused to cut off funds for the Guantanamo Bay facility. But I think not understanding the proper role, where that line is, got President Obama into hot water constitutionally. And I think the same thing goes for President Trump.

MARTIN: You wrote in the op-ed recently in the Times that the immigration ban blocking travelers from seven Muslim-majority countries - that that is within President Trump's powers, although there are lawsuits pending right now that argue otherwise. So if you see this as legal, what is your critique of it?

YOO: I think there's two different kinds of law at work here. One is the laws that Congress passed to regulate immigration. It should be clear, I hope, to the White House by now that only Congress, under our Constitution, controls immigration. Any power President Trump exercises in the immigration area can only be using the authority given to him by Congress already.

And Congress has said that immigration law should not be administered in a way that discriminates based on national origin or nationality, race or religion. On the other hand, it does give the president power to suspend the entry for certain, what it calls, classes of aliens when it's in the national interest. So this is a conflict in statutes.

MARTIN: And isn't that moment? Isn't that what the administration is arguing?

YOO: Yes. I think - and, you see, you have two laws that conflict, and a court's going to have to resolve it. But that's not really why I think President Trump is in trouble. If the government is really restricting people's entry into the country just because of their religion, then I think you've got two problems. You're either running into the free exercise of religion protection in the First Amendment, or - I think worse yet - you might be violating that part of the Constitution and the First Amendment, too, that says the government cannot favor one religion over another or even go so far as try to establish a national religion.

MARTIN: I want to get back to this question about the nature of presidential power because in this op-ed, you described yourself as following in Alexander Hamilton's footsteps, specifically when you advised George W. Bush to take measures after 9/11 that included waterboarding terrorism suspects. And you say also that President Obama was within his executive rights when it came to his escalation of drone strikes.

We are still, as a country, in that same war with those terrorist groups. It's the same authorization passed by Congress after 9/11 that's in place that's governing our behavior. So why doesn't President Trump have those same executive powers?

YOO: I think he does. And so I agree - if President Trump wants to use drone strikes, if he wants to send Special Forces out there to attack al-Qaida leaders or he wants to get more deeply involved in Syria, I think he has the presidential authority. And that's what the Constitution is trying to channel the presidency into. But when it comes to immigration, when comes to domestic issues that are under the control of Congress, I think the president's supposed to play a secondary role. I actually think President Obama also, in the immigration area, probably pushed presidential power too far with his DAPA and DACA orders. And that's where he got, I think, the most criticism for his use of constitutional powers.

That same constitutional thicket of immigration is now dragging President Trump in a way that doesn't involve the national security. If there really were a national security emergency, he has other laws, other powers to draw upon, that would affect the country's ability to try to search through a filter for people trying to get into the country who are potential terrorists.

MARTIN: John Yoo - he teaches law at the University of California at Berkeley.

Thank you so much for your time.

YOO: Oh, Rachel, thanks very much.

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