John Yoo, Impervious to Irony, Makes Bad Legal Argument

John Yoo was one of several up and comers in the Bush DOJ who traded in their credibility and integrity by attempting, unpersuasively, to defend torture. He has since found a home with the Berkeley Law School, where he primarily teaches Constitutional and International Public Law. He’s a piece of work. And he still makes awful legal arguments to advance his venal political views and aspirations.

Yoo starts off badly. Yesterday, Obama decided to stay the deportation of some 800,000 law-abiding adults who immigrated to this country, as children, without proper documentation. Yoo says this executive order “illustrates the unprecedented stretching of the Constitution and the rule of law.

Setting aside the vague, quasi-metaphorical language, (Does it “illustrate” unprecedented stretching, or is it actually unprecedented stretching, Professor Yoo?) the profound irony of John Yoo going into a panicky, hyperbolic fit about an executive overreach is so enormous it’s difficult to grasp, like clutching at a boulder. It’s impressive doublethink, enabled by a total lack of self-awareness.

Never before in the history of most anything has a president gone so far beyond the bounds of law and decency as to decline applying an enormously draconian penalty for a years-old administrative infraction committed by a third party. Apparently Yoo thinks the Constitution was sculpted around war, murder and fraud, so that only mercy lies outside its bounds. For Yoo, the Constitution is Pandora’s Vacuum.

Then, Yoo makes an actual legal argument, and things gets worse. In fact, Obama’s executive decision is clearly justified under his authority to prosecute laws. At both the state and federal levels, executives have the authority to use clemency and selective enforcement — with limitations — to best enforce laws which cannot be enforced in their entirely. This is called prosecutorial discretion.

Where the mayor can’t catch every drunk driver, that mayor can set up checkpoints to catch SOME drunk drivers, or to catch as many as you can within budget limitations. For purely budgetary reasons, a governor can instruct state troopers not to perform full custodial arrests for possession of small amounts of marijuana. A district attorney can perform the same function through plea bargaining and by choosing which crimes and infractions to prosecute. Executives and prosecutors have this discretion.

This action is an obvious exercise in that discretion. But John Yoo feels otherwise:

But prosecutorial discretion is not being used in good faith here: A president cannot claim discretion honestly to say that he will not enforce an entire law — especially where, as here, the executive branch is enforcing the rest of immigration law.

At first glance, this is word salad. Yoo claims that Obama declined to enforce entire the “entire law” at work here. The “entire law” here is the US Customs and Immigration Code and Obama never said he would decline to enforce the entire law. That was be absurd, because this is an enormous, omnibus body of law that governs every aspect of non-citizens moving across U.S. borders. There’s honestly no way Obama even could decline to enforce the entire USCIS. If its procedural elements were taken out of play, the borders would shut down. It’s a chaotically stupid concept.

I don’t think Yoo actually understands that U.S. Immigration law is an entire, substantive body of law unto itself, with its own judges and procedures, and that executive discretion acts to allow the President to prioritize among the various provisions of the USCIS. I really think Yoo believes that there’s some “Immigration Law” separate from the whole, giant USCIS, and that Obama has declined to enforce that “Immigration Law” in its entirety. That is, instead of a single giant Code, there are dozens of little tiny immigration laws — one for these 800,000 people, and another for some other people, and so on. This is surprisingly common error for lawyers who have never done substantive legal work.

And that’s my guess. He could be confused and wrong in some other way. Yoo made a terrible, confused, and obviously rushed legal argument by pretending to expertise over a substantive sphere of law he does seem to actually possess. It’s entirely possible he’s made some other asinine error.

Randolph Brickey

Randolph Brickey is an attorney in solo practice in Northern Virginia.