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June 16, 2012 9:51 AM John Yoo, Impervious to Irony, Makes Bad Legal Argument

By Randolph Brickey

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 is an attorney in solo practice in Northern Virginia.

Comments

  • stormskies on June 16, 2012 11:20 AM:

    Right, and if it were Bush making the same executive order for the same reasons what do you think this buffoon would be saying then ?

  • dp on June 16, 2012 11:20 AM:

    I think Yoo believes that Obama could extrajudicially execute this immigrants, but he can't not deport them.

    The fact that this guy has a job at a law school reflects poorly on Berkeley Law. The fact that he hasn't been disbarred reflects poorly on the legal profession. And the fact that he's not in prison reflects poorly on all of us.

  • c u n d gulag on June 16, 2012 11:22 AM:

    Now, you, not Yoo, can't argue that this is pure feckin' comedy gold!!!

    So, the President stomping on the testicles of his/her opponent's children is fine, according you Yoo-Yahoo - but this, THIS!, is overreach bordering on tyranny! TYRANNY!!!

    What's next, an article by Archbishop Dolan on how children need to be able to identify sexual predators, and how to avoid the child-feckers?
    (The answer, Arch-enemy-of-children-Bishop Dolan - is to avoid going to a Catholic Church).

    Is Yoo-Yahoo still teaching law at Berkley?
    And if so - why?
    He know less about Constitutional Law than the janitor at the school.

    John Yoo - another Conservative suffering from an "irony" deficiency!

  • Danp on June 16, 2012 11:25 AM:

    Does it “illustrate” unprecedented stretching, or is it actually unprecedented stretching, Professor Yoo?


    How is it even unprecedented? Has deporting adults who grew up here ever been commonplace?

  • patrick II on June 16, 2012 11:34 AM:

    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.

    Yes he did


    It’s entirely possible he’s made some other asinine error.

    No, he made no error, at least in the context of his real job (not lawyer). His job is to be a partisan legal megaphone. He was supposed to say something that would get press attention with legal sounding criticism of Obama's policy and asserting once again that Obama pays no attention to the constitution.
    He did that. If you wanted actual legal advise, that would cost extra.

  • DJ on June 16, 2012 11:36 AM:

    Is Yoo-Yahoo still teaching law at Berkley?
    And if so - why?

    If he is, the students should do what Catholic seminarians in Rome did when they learned of one of their professor's secret efforts behind writing Humanae Vitae, the papal encyclical that said contraception was always wrong. They refused, en masse, to take any of his classes, and ended his teaching career. Surely the bright young men and women at Boalt Hall could stir themselves to do something similar.

    The better question is why Yoo has not been disbarred. Or imprisoned for war crimes,

  • hells littlest angel on June 16, 2012 11:39 AM:

    Well, said Mr. Brickey. You don't mince words.

    Same to dp.

  • SadOldVet on June 16, 2012 11:57 AM:

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  • Mike in Montgomery on June 16, 2012 12:02 PM:

    John Yoo teaching Constitutional Law and International Law at a major law school is a disgrace. His primary function was to provide a putative legal basis for George W. Bush to violate the Constitution and evade international treaty responsibilities. His position at Berkeley is equivalent to a major History Department having a Holocaust denier as a member of its European history faculty.

  • Emily on June 16, 2012 12:02 PM:

    I take comfort in the fact that Yoo has to wake up every morning and teach at the most liberal, granola-crunching, anti-Bush institution in the country. I hope they make him feel right at home.

  • Anonymous on June 16, 2012 12:18 PM:

    Shorter Yoo:

    All the money we're saving by laying off teachers should now be spent on ICE agents rounding up brown people.

  • Mimikatz on June 16, 2012 12:24 PM:

    Not too much more to say. Yoo is a hack, a third-rater, and a total disgrace to Boalt Hall School of Law (perhaps not to the hip "Berkeley Law," though) and should never have been given tenure. His inability to construct a coherent legal argument is evident in his writings from the torture memos to is latest screed, and should have disqualified him from teaching. He is a blot on the school and the profession.

  • jjm on June 16, 2012 12:30 PM:

    I can't imagine why he got tenure at Boalt except to please the fascists in the Bushies administration (I think Powell's aide Wilkerson called them the "Nazis").

    What a perfect illustration of the right wing's utter inability (Romney suffers from this, too) to comprehend anything from the point of view of another. (And stupid me, I thought the Law was all about this...)

    I recall Hannah Arendt writing about this as characterizing Adolph Eichmann, who confronted with survivors and victims in a long parade at his trial could simply never understand that he did anything wrong at all.

  • biggerbox on June 16, 2012 12:59 PM:

    Sorry, Professor Yoo. I can't entertain any further arguments about Executive over-reach until you adequately explain the justification for 10 years of war in Iraq when there was never a Congressional declaration of war. We're still waiting for that, you know.

    Until we have clarified the power of the Executive to kill and wound thousands of innocents, I think fretting about whether we're deporting law-abiding people raised in the United States will just have to wait.

  • longwalkdownlyndale on June 16, 2012 1:20 PM:

    Oh John Yoo, how we shall miss thee. If you guys want to see a great example of the awfulness, cowardice and general weenieness of the legal architect of legally sanctioned torture there's a great clip the the Australian comedy show "The Chaser". Essentially they just cause trouble in Yoo's sacred law school class:

    http://www.youtube.com/watch?v=3EwTPQjT0hA

  • smintheus on June 16, 2012 1:48 PM:

    Laws go unenforced all the time under Republican presidents...by the simple device of failing to hire enough people to enforce the law. Under Reagan and both Bushes, banking regulations, the IRS code (especially as it relates to the wealthy), and the regulation of Wall St., as well as much of the oversight traditionally done by the Interior Dept. of for example oil companies, and the enforcement of safety rules in coal mines, were all badly affected by the deliberate policies of under-hiring government enforcers. Besides that, many existing career employees who did their work too successfully during those administrations found their careers ruined when the political appointees dealt with the problem by shunting them aside into non-enforcement roles.

  • Quaker in a Basement on June 16, 2012 2:23 PM:

    I really think Yoo believes that there’s some “Immigration Law” separate from the whole, giant USCIS,

    And yet he presents a Constitutional argument. Where in the Constitution does he find anything at all to do with immigration, documented or otherwise?

  • navamske on June 16, 2012 2:42 PM:

    Someone was bound to make this argument.

    It had to be Yoo.

  • MassachussettsLiberalinDC on June 16, 2012 4:14 PM:

    Yoo is remarkably ignorant. The Obama policy is not unprecedented and follows explicit language on discretion authority in the law.

    Anyone familiar with the deportation debate knows that last year Obama and ICE decided to use their enforce discretion to focus on violent undocumented aliens. In 15 minutes I found an appropriate ICE memoradum entitled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities ofthe Agency for the Apprehension, Detention, and Removal of Aliens” from June 2011. It was easy, just go to the Federation for Immigration Reform, they have lots of information on what they consider wrong about current law.

    The memo quickly points you to “Delegation of Authority to the Assistant Secretary, Immigration and Customs Enforcement, Delegation No. 7030.2 (November 13, 2004), delegating among other authorities, the authority to exercise prosecutorial discretion in immigration enforcement matters”. The basis of this authority is 8 USC § 1182 “The Attorney General may … in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States”.

    All this took 15 minutes on Google.

  • John on June 16, 2012 4:58 PM:

    If you are going to hyperbolically accuse someone of making horrendously bad arguments, your own arguments shouldn't be horrendously bad.

    DUI check points aren't analogous. What would be analogous is if police came across drunk drivers somewhere other than at a check, had the opportunity to arrest them, and didn't (assuming the the driver's BAC is above the legal limit). The correct analogy would be the police deciding to decline to arrest a certain class of drunk drivers - perhaps drunk drivers that have no criminal history and good driving records - where the police otherwise would arrest such drivers, whether at a checkpoint or not.

  • Tanstaafl on June 16, 2012 5:52 PM:

    Sorry John, but DUI is a criminal offense that represents a serious safety threat. Illegal immigration is a civil issue in which the penalty is deportation and any incarceration is intended to prevent someone from disappearing before their case is resolved.

    A closer analogy would be authorities and courts deciding whether to prosecute political protesters for trespassing. A decision that generally involves a balance between the authorities' desire to enforce the law (and to dissuade the challenge to their authority and/or policies that the protesters represent) versys the resources available to them and the legitimate rights of the protesters.

  • Robert Waldmann on June 16, 2012 8:02 PM:

    You are unfair to the Berkeley law school. Yoo didn't find a home there after defending torture. He was on leave from a tenured position when he defended torture. The Law School can only decide if his efforts amount to moral turpitude and justify revocation of tenure as suggested by this guy in the economics department who won't mind his own business
    http://delong.typepad.com/the_torture_memo/2008/05/the-torture-mem.html.

  • trizzlor on June 17, 2012 2:29 AM:

    Okay, so Yoo has no credibility on this issue and it's clearly a political win for Obama. But is there a defense of the tactic other than "Republicans do it too?".

    Is this kind of thing setting a terrible president for future presidents? If there is already a DREAM-lite with support from Republicans, why cut that off at the pass with an executive order that's much less permanent? The strategy on executive orders seems to have reversed when it came to DADT repeal, is that just an issue of pragmatism?

  • c u n d gulag on June 17, 2012 7:53 AM:

    trizzlor,
    DREAM-lite does NOT have support from Republicans!

    It has support from ONE Republican - Marco Rubio (and maybe, maybe, a handful of others).

    Conservatives allow THEIR special interest politicians and candidates some latitude in their "Little Tent of Many Old White Males."

    McCain, can talk about campaign finance and torture - but he's the only one!
    Rubio, of Cuban heritage, can talk about immigration reform - but HE'S it!
    A few women can talk about women's issues - but that's all! And they certainly can't be pro-choice. And maybe, not even pro-contraception, anymore.
    If they had a Black Congressperson or Senator, they'd be allowed to talk a little bit about race - but just a little. And THAT had better sound like Clarence Thomas when he talks about race.

    This way, their "Little Tent of Many Old White Males" looks bigger and more inclusive.

    But they'll all still vote in lockstep - to "Please the Base," don't you know...

  • smartalek on June 17, 2012 1:09 PM:

    "It’s impressive doublethink, enabled by a total lack of self-awareness."

    Well, maybe.
    Or maybe he's just lying thru his teeth.

  • Al B Tross on June 18, 2012 11:34 AM:

    Berkeley has not been a hippie- haven for decades......it has been a minimum security mental institution brainwashing upper class elites to keep believing Capitalism works.

    The City Council of Berkeley has come full circle, they have leaned left, until they fell over, went under, and came up on the "keep off MY lawn, not in my backyard, we hate wall street, except for our trust funds" side of the world.

    The citizens of Berkeley? Petty Bourgeoise, at best. Much like most of Northern California, a liberal veneer on a redneck chiffarobe.