Author of Torture Memos Challenges Legality of DACA

Written by on September 26, 2012 in DACA/DAPA, Enforcement, Immigration Courts, Legislation with 3 Comments

As a high-ranking Justice Department attorney after 9/11, John Yoo authored an infamous legal memo arguing that the President, as commander-in-chief of the armed forces, possessed irrevocable authority to order the torture of alleged “enemy combatants.” Although the memos were subsequently revoked, Yoo has remained an ardent defender of presidential power—except, it appears, when it comes to the exercise of prosecutorial discretion for undocumented immigrants.

In a working paper released earlier this month, Yoo, now a law professor at the University of California, argues that by offering deferred action to immigrants who would have benefitted from passage of the DREAM Act, the President has abandoned his constitutional responsibility to enforce the laws. Specifically, Yoo contends that the Deferred Action for Childhood Arrivals (DACA) initiative is such a broad application of prosecutorial discretion as to  be incompatible with the constitutional requirement that the President “take care that the laws be faithfully executed.”

Of course, Yoo is not the first critic of the President to challenge the legality of DACA. Rep. Steve King (R-Iowa) has repeatedly vowed to bring litigation over the initiative, and Kris Kobach, the Kansas Secretary of State and author of Arizona’s SB 1070, filed a complaint in federal court on behalf of ICE agents who oppose the program. Yet like King’s and Kobach’s claims, Yoo’s paper betrays a basic unfamiliarity with federal immigration law and policy.

For one thing, Yoo equates deferred action with the DREAM Act itself, which would put beneficiaries on a path to U.S. citizenship. By contrast, recipients of deferred action gain no lawful immigration status, and remain subject to enforcement action at any time. Moreover, contrary to Yoo’s assumption that the immigration laws mandate the initiation of  removal proceedings in every possible case, the Supreme Court has repeatedly confirmed that the decision to grant deferred action neither requires approval from Congress nor is subject to challenge in federal courts. Finally, Yoo falsely states that the processing of deferred action requests will be handled by ICE, an agency funded by taxpayers, rather than USCIS, an agency funded almost entirely by immigrants’ fees.

Beyond factual and legal misstatements, Yoo’s article also omits abundant evidence demonstrating that immigration enforcement has increased during the Obama administration. For example, nowhere does the article mention that the government has carried out more deportations on an annual basis since the President took office than ever before in U.S. history. Or that ICE detained a record number of immigrants during the most recent fiscal year. Or that the backlog of cases before immigration judges currently exceeds 320,000.

To be sure, supporters of the DACA initiative do not deny that it represents a broad if not unprecedented exercise of prosecutorial discretion. But only hardened ideologues—such as King, Kobach, and now Yoo—have argued that DACA itself violates the law or the Constitution. As we have previously explained, these claims are nothing more than political sour grapes with little to no chance of surviving in court. Although the allegations may seem significant, they are based on nothing more than tortured logic.

Photo by Commonwealth Club

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  • The reality is that ICE’s resources are strained going after the gang bangers, drug dealers and violent criminals. ICE was not really going to expend its resources on the DREAMers, unless they had criminal records. But just as a police officer has the discretion not to arrest someone he or she sees break the law, so too the President has the discretion not to place a person who violates immigration law in removal proceedings.

  • david akintimoye

    DACA is a policy not a law because it does not confer lawful status on beneficiaries. We cannot punish children for the wrongdoing of their parents. Removal of DACA beneficiaries will be tantamount to cruel and unusual punishment because they did not tell their parents to bring them here. We thank our President for DACA for not allowing us to have second class children in U.S.
    David Akintimoye
    Attorney at law

  • Bill Run

    DACA was part of a reassessment of priorities. In this reassessment, it was decided that enforcement agents should stop chasing grandmothers and kids around, and start using the time they save (from not chasing kids and grannies), and chase drug dealers, gang members, and murderers, instead.

    The enforcement arms of the immigration process have limited resources. DACA was a way of saying “quit wasting those limited resources on low-hanging fruit, and go after some serious threats”

    In this context, DACA was, and still is, a good idea.


    John Yoo seems to go out of his way to inflict harm on people who do not deserve such infliction.

    On December 1, 2005, Yoo appeared in a debate in Chicago with University of Notre Dame law professor Doug Cassel. During the debate Cassel asked Yoo, “If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?”, to which Yoo replied “No treaty.” Cassel followed up with “Also no law by Congress — that is what you wrote in the August 2002 memo…”, to which Yoo replied “I think it depends on why the President thinks he needs to do that.”

    John Yoo: “Toss out grannies and kids, crush the testicles of children, torture as a matter of routine”

    John Yoo is a terrible excuse for a human being, and should be locked up for his complicity in torture. But, hey! He’s teaching in the California University system.