John Yoo, former Bush administration Justice Department lawyer and author of the infamous "Torture Memo", who is now a law professor at the University of California at Berkeley, has published an article along with co-author Robert J. Delahunty condemning the Obama administration for allegedly exceeding its Constitutional authority by granting a whole class of unauthorized immigrants a temporary deferment from deportation under DACA. The Obama Administration, the Dream Act and the Take Care Clause, Texas Law Review, Vol. 91, No.4, 2013 (September 9, 2012).
Yoo's basic premise is that the Constitution makes the role of Congress supreme in domestic matters, but gives the president almost unlimited authority over foreign affairs and national security. He concedes that immigration relates to both domestic and foreign affairs, but argues that it is still an issue over which Congressional power is greater than that of the president. He then goes on to refute various arguments to the effect that Congress has, by implication, delegated broad discretionary power over immigration to the president which can be used to justify DACA. His conclusion is that, based on his theory of very narrow presidential power over domestic matters, DACA is a clear abuse of executive power.
It is not my intention here to go into a detailed discussion of Yoo's article. However, even accepting his highly questionable conclusion that there is a fundamental difference between the limits of Congressional and presidential power depending on a distinction between domestic vs. foreign and national security affairs, his conclusion that immigration belongs primarily to the domestic area is hardly consistent with the almost universally accepted view that immigration is in large part a national security matter. To give just one of many examples, as a result of 9/11, immigration enforcement is carried out by the Department of Homeland Security.
Therefore if one accepts the dichotomy expounded in John Yoo's "Torture Memo" and his recent law review article between narrowly limited presidential power in domestic matters and almost unlimited presidential power in foreign affairs and national security, it would follow logically that there is nothing wrong within taking the waterboarding equipment out of mothballs and putting it to use on "national security" grounds in order to interrogate people who might either be unauthorized immigrants themselves or "aiding and abetting" unauthorized immigrants.
Examples of activity which, under the logic of Yoo's argument that the president has almost unlimited power over national security, might be waterboardable conduct, could be employing unauthorized immigrants, maintaining a family relationship with them or providing them with, say, medical treatment or religious counseling (not to mention legal advice).
In fairness, of course, nothing that John Yoo has written even remotely suggests that he actually favors the use of torture or "enhanced interrogation" as a method of immigration enforcement. But this conclusion follows inevitably from his basic premise that the Constitution places few, if any, limits on what a president can do in the area of foreign affairs or national security.
Why, therefore, is Yoo so anxious to argue in his latest article that the president's power of immigration is very narrowly limited? The answer seems obvious. President Obama is trying, through DACA, to provide relief to a certain limited class of people, namely DREAMers, who are in this country without legal status. But would Mr. Yoo's view of presidential power over immigration be so narrow if the government were trying to torture them instead? People who live in Constitutional glass houses should not throw ideological stones.
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years