The Trump Administration asks John Yoo, the George W. Bush Administration lawyer who justified torture, how Donald Trump can rule by decree.

Yoo confirmed to The Guardian that White House officials are consulting him about his view that a Supreme Court ruling on immigration allows Trump to issue executive orders bypassing federal laws.

Yoo, able to take a position at the University of California despite criticism of his torture advocacy, bases his argument on a unique reading of the Supreme Court’s refusal to strike down protections for “Dreamer” immigrants.

In 2012, President Barack Obama issued the order for Deferred Action for Childhood Arrivals, which permits the children of undocumented immigrants to remain in the US to study, work, and joined the armed forces. The Trump Administration has tried since 2017 to scrap DACA and threaten the Dreamers with deportation.

The Supreme Court ruled in June, in an opinion written by Chief Justice John Roberts, that the Trump Administration’s decision to end the program was “arbitrary and capricious”.

Yoo argues:

The Supreme Court has said President Obama could [choose not to] enforce immigration laws for about 2 million cases.

And why can’t the Trump administration do something similar with immigration – create its program — but it could do it in areas beyond that, like healthcare, tax policy, criminal justice, inner city policy. I talked to them a fair amount about cities, because of the disorder….

If the court really believes what it just did, then it just handed President Trump a great deal of power, too.

Trump: “Things That We’ve Never Done Before”

The Trump Administration quickly seized upon Yoo’s argument, published in The National Review last month. The article was soon placed. on Trump’s desk.

In a rambling, lie-filled interview broadcast on Fox News on Sunday, Trump said he would try to force through decrees on healthcare, immigration, and “various other plans” over the coming month.

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. And you’re going to find it to be a very exciting two weeks.

See TrumpWatch, Day 1,277: Trump Lies, Blusters, Threatens to Defy Election Outcome

In the past week, Constitutional scholars and human rights activists have warned of another sign of Trump’s decree to bypass law, with the deployment of Homeland Security officers in Portland, Oregon to suppress Black Live Matters protests. The officers, with unmarked uniforms and vehicles, have been filmed detaining and beating demonstrators. Portland Mayor Ted Wheeler has demanded that they are withdrawn from the city.

Harvard constitutional law professor Laurence Tribe wrote:

Trump said on Monday that he will send the camouflage-clad Homeland Security officers to other cities, all of whom are led by Democratic mayors.

I’m going to do something — that, I can tell you. Because we’re not going to let New York and Chicago and Philadelphia and Detroit and Baltimore and all of these — Oakland is a mess. We’re not going to let this happen in our country. All run by liberal Democrats.

Trailing Democratic nominee Joe Biden in the polls, the Trump campaign has pursued the tactic of threatening to crush marches, even though they are supported by about 80% of the American public, with military force.

Even though this backfired, including with Trump’s June 1 walk from the White House to a nearby church as peaceful demonstrators were tear-gassed to clear the way, the campaign has persisted with the line that anti-racism marchers are “extremists” and “anarchists”.

“Indefensible”

In August 2002, as George W. Bush and his top advisors sought cover for the extraordinary rendition and torture of detainees at sites like Guantanamo Bay in Cuba, Yoo wrote as Deputy Attorney General that “necessity or self-defense may justify interrogation methods that might violate” the criminal prohibition of torture.

The opinion was used to justify waterboarding, sleep deprivation, suspension in painful positions, and other forms of torture at Guantanamo Bay and other CIA “black sites” around the world.

Yoo now asserts that the Founding Fathers would support Trump’s flouting of law:

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.

Citing examples such as refusal to enforce federal firearms laws, Yoo says that — in contrast to Trump’s sweeping authority — his successor would be almost powerless:

Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency….

According to the Supreme Court, the president can now choose to under-enforce the law in certain areas and it can’t be undone by his successor unless that successor goes through this onerous thing called the Administrative Procedure Act, which usually takes one to two years.

Tribe said Yoo’s opinions are “indefensible”.

Alka Pradhan, a defense counsel in the 9/11 terrorism cases against Guantánamo Bay detainees, summarized:

John Yoo’s so-called reasoning has always been based on “What can the President get away with?” rather than “What is the purpose and letter of the law?”

That is not legal reasoning, it’s inherently tyrannical and anti-democratic….The fact that John Yoo is employed and free to opine on legal matters is an example of the culture of impunity in the United States.