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Photo illustration: Sarah Grillo/Axios. Photo: Mark Wilson/Getty Images

President Trump and top White House officials are privately considering a controversial strategy to act without legal authority to enact new federal policies — starting with immigration, administration officials tell Axios.

Between the lines: The White House thinking is being heavily influenced by John Yoo, the lawyer who wrote the Bush administration's justification for waterboarding after 9/11.

Yoo detailed the theory in a National Review article, spotted atop Trump’s desk in the Oval Office, which argues that the Supreme Court's 5-4 DACA ruling last month "makes it easy for presidents to violate the law."

  • The president has brought up the article with key advisers, two Trump administration officials tell Axios.

Yoo writes that the ruling, and actions by President Obama, pave the way for Trump to implement policies that Congress won't.

  • Some could remain in force for years even if he loses re-election.
  • Yoo — who next week will be out with a new book, "Defender in Chief," on Trump's use of presidential power — tells Axios that he has met virtually with White House officials about the implications of the ruling.

What's next: The first test could come imminently. Trump has said he is about to unveil a "very major" immigration policy via executive order, which he says the Supreme Court gave him the power to do.

  • The order could include some protections for immigrants who traveled to the U.S. illegally as children, something most Americans support.
  • That could be a political olive branch to Latino voters, though the Trump administration moved to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program, which led to the Supreme Court's involvement.
  • The order could also include significant new restrictions on immigration that couldn't get through Congress but are favored by the president, Jared Kushner and hardline adviser Stephen Miller.

Driving the news: Yoo told Axios that Chief Justice John Roberts' opinion "sets out a roadmap about how a president can use his prosecutorial discretion to under-enforce the law."

  • The recourse would be if the next president tries to reverse what's set in motion.
  • "Suppose President Donald Trump decided to create a nationwide right to carry guns openly," Yoo writes in his National Review op-ed. "He could declare that he would not enforce federal firearms laws, and that a new 'Trump permit' would free any holder of state and local gun-control restrictions."
  • "Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two."

Reality check: This is a somewhat strained reading of both procedural history and the law, according to Axios’ Sam Baker. The Supreme Court has never ruled either way on DACA’s legality.

  • But the Supreme Court wouldn’t be able to decide the merits of anything Trump does before the election.
  • Two administration officials told Axios that although the president has shown an interest in Yoo's thinking, the White House wouldn't rely solely on that.
  • "You have to act in good faith, and think that what you’re doing is good and legal," one official said.
  • "It's very much in dispute as to whether or not the president has that much control over immigration through executive order," a second official said.

What we're watching: Trump told Chris Wallace in an interview for "Fox News Sunday" that in addition to replacing DACA with "something much better," he's also going to be unveiling a health care plan within two weeks "that the Supreme Court decision on DACA gave me the right to do."

  • The White House declined to comment for this story.

Go deeper

Updated Oct 27, 2020 - Politics & Policy

Republicans and Dems react to Coney Barrett's Supreme Court confirmation

President Trump stands with Judge Amy Coney Barrett after she took the constitutional oath to serve as a Supreme Court justice during a White House ceremony Monday night. Photo: Tasos Katopodis/Getty Images

President Trump said Judge Amy Coney Barrett's Senate confirmation to the Supreme Court and her subsequent taking of the constitutional oath Monday was a "momentous day," as she she vowed to serve "without any fear or favor."

Of note: As Republicans applauded the action, Democratic leaders warned of consequences to the rush to replace the late liberal Justice Ruth Bader Ginsburg with a conservative so close to the election, as progressives led calls to expand the court.

Supreme Court rejects request to extend Wisconsin absentee ballot deadline

Photo: Saul Loeb/AFP via Getty Images

The Supreme Court in a 5-3 decision Monday rejected an effort by Wisconsin Democrats and civil rights groups to extend the state's deadline for counting absentee ballots to six days after Election Day, as long as they were postmarked by Nov. 3.

Why it matters: All ballots must now be received by 8 p.m. on Election Day in Wisconsin, a critical swing state in the presidential election.

Trump appointee resigns over order removing job protections for some federal workers

Photo: Alex Wong/Getty Images

Federal Salary Council Chair Ron Sanders resigned on Monday over President Trump’s recent executive order that strips civil service protections for some federal workers.

Why he's saying: Sanders, who was appointed by Trump in 2017, said he could no longer work for the president as “a matter of conscience.”