UC Berkeley law professor advises White House on how to pass policies without Congress

John Yoo
Miller Center/Creative Commons
UC Berkeley School of Law professor John Yoo has been advising President Donald Trump’s administration to use his proposed political theory as a justification for bypassing congressional approval when implementing policies.

Related Posts

UC Berkeley School of Law professor John Yoo has been consulting the White House on a political theory that allows a sitting president to impose policies without congressional approval.

Yoo published an article June 22 in National Review arguing that the U.S. Supreme Court’s June 18 decision to reinstate the Deferred Action for Childhood Arrivals, or DACA, program has made it more difficult for a president to repeal an existing unilateral policy than for a president to enact that policy in the first place.

In a July 20 article for the Guardian, Yoo revealed that he has been in discussion with White House officials about his theory and how President Donald Trump can bypass Congress to impose unilateral policies that, similarly, would be difficult for the next president to repeal. Yoo was contacted for comment but did not respond as of press time.

“President Barack Obama could issue his extralegal visa programs for children and their parents aliens by simple executive fiat,” Yoo wrote in National Review. “President Trump had to pretend the order was legal and use the slow Administrative Procedure Act to reverse them.”

Campus political science professor Sean Gailmard said in an email that the political implication of the court’s decision in Yoo’s interpretation is that a sitting president can, in some way, affect the actions of their successor.

“This means that if a voter disapproves of a policy, they have no way to express their disapproval through their ballot,” Gailmard said in the email.

According to Gailmard, the validity of Yoo’s theory ultimately depends on the court’s involvement as a political actor and on evolving and contested politics.

Other scholars have argued that the Supreme Court’s decision only reaffirms that the executive branch needs to give adequate reasons for its actions, especially if those actions negatively impact a vulnerable category of people.

Yoo is now advising the current administration to use his interpretation of the court’s recent decision as a political tool for the president to pass policies.

“It would be foolish for a president not to recognize and use that tool as best they can — and every president, Republican and Democrat, pushes the tools of the office as far as they legally can,” Gailmard said in the email.

Erwin Chemerinsky, dean of Berkeley Law, said in an email that he has received many messages from alumni and students who were upset at Yoo’s position, but Yoo’s actions were legal.

“Professor Yoo is a tenured professor and his speech, including his advice to the Trump administration is protected by the First Amendment and academic freedom,” Chemerinsky said in the email. “I disagree with his position on this, but he has the right to express it.”

Chemerinsky added that the law school will not take any action against Yoo.

Contact Catherine Hsu at [email protected] and follow her on Twitter at @catherinehsuDC.