Example Image
Civitas Outlook
Topic
Politics
Published on
Apr 23, 2025
Contributors
John Yoo
Photo by History in HD on Unsplash

What Trump Can Learn from George W. Bush on Immigration Strategy

Contributors
John Yoo
John Yoo
Senior Research Fellow
John Yoo
Summary
The White House should follow the Bush administration’s example and avoid antagonizing the Supreme Court.
Summary
The White House should follow the Bush administration’s example and avoid antagonizing the Supreme Court.
Listen to this article

With its order halting deportations to El Salvador at 1:00 a.m. on Saturday, the Supreme Court has intervened in the battle between the Trump administration and federal courts over immigration rights. As the justices examine whether the government can remove alleged Venezuelan terrorist gang members from American territory, they will revisit a series of cases stemming from the last major clash between a White House’s national security priorities and aliens’ alleged constitutional rights: the Bush administration’s decision to hold terrorists at Guantanamo Bay after 9/11.

As an official in the Justice Department’s Office of Legal Counsel at the time, I took part in the decisions that followed the core choice to treat the 9/11 attacks as acts of war rather than grandiose crimes. Like the Trump administration today, the Bush Justice Department adopted aggressive legal positions rooted in past wartime precedents—positions unfamiliar to most Americans, who had not seen a direct attack on U.S. soil since World War II. Ultimately, the Supreme Court upheld the government's authority to adopt a wartime legal posture in response to 9/11 and the broader war on terrorism. But it also ruled that the Due Process Clause required meaningful distinctions in how the government treated citizens and non-citizens, depending on where U.S. forces encountered them.

Comparing 2001 with 2025 reveals stark differences that suggest today’s Court may reject key aspects of the Trump immigration agenda. If it learns the lessons of the Bush experience, the Trump administration can avoid a needless confrontation with the most conservative Supreme Court in a century. The Court’s conservative majority—in particular, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—would support giving the president broad discretion to fight a real war, within the limits of the Constitution.

Continue reading at City Journal

10:13
1x
10:13
More articles

Becoming a Deficit Nation

Politics
May 19, 2025

Trump, Lincoln and a ‘Habeas Corpus Threat’

Constitutionalism
May 18, 2025
View all

Join the newsletter

Receive new publications, news, and updates from the Civitas Institute.

Sign up
More on

Politics

Liberal Democracy Reexamined: Leo Strauss on Alexis de Tocqueville

This article explores Leo Strauss’s thoughts on Alexis de Tocqueville in his 1954 “Natural Right” course transcript.

Raúl Rodríguez
Politics
Feb 25, 2025
Long Distance Migration as a Two-Step Sorting Process: The Resettlement of Californians in Texas

Here we press the question of whether the well-documented stream of migrants relocating from California to Texas has been sufficient to alter the political complexion of the destination state.

James Gimpel, Daron Shaw
Politics
Feb 6, 2025
Who's That Knocking? A Study of the Strategic Choices Facing Large-Scale Grassroots Canvassing Efforts

Although there is a consensus that personalized forms of campaign outreach are more likely to be effective at either mobilizing or even persuading voters, there remains uncertainty about how campaigns should implement get-out-the-vote (GOTV) programs, especially at a truly expansive scale.

Grant Ferguson, James Gimpel, Mark Owens, Daron Shaw
Politics
Dec 13, 2024
National Poll from Civitas Institute: Trump Victory Driven by Voters Who Reject Status Quo

The poll asked 1,200 Americans an array of questions about how things are going in America.

Daron Shaw
Politics
Dec 11, 2024

The Three Whiskey Happy Hour

Steven Hayward brings you the Power Line Blog's perspective on the week's big headlines.

View all
** items
Donald Trump Has Scrambled the Old Class Allegiances

Oligarchs, professionals and the working class are all divided among themselves.

Joel Kotkin
Politics
May 14, 2025
The Pope of Progress?

Francis made progressive politics his lodestar. The result was a failed papacy.

Richard Reinsch
Politics
May 6, 2025
Relief for Trump in Sight — If Supreme Court Special Session Reins in Rogue Judges

Nationwide injunctions have proven a disaster for the federal judiciary.

John Yoo
Politics
Apr 25, 2025
The Dangers of the Political Gender Gap

Young women and men are gravitating towards opposite political extremes, with potentially explosive consequences.

Joel Kotkin
Politics
Apr 24, 2025

Trump’s Drug Pricing Plan: Consequences for Innovation and Patient Access

Politics
May 13, 2025
1:05

John Yoo: The DOJ Is Being ‘Tricky’ but They May Be Right

Politics
Mar 18, 2025
1:05

John Yoo: How Will Trump Try to ‘Redirect’ the Justice Department Toward ‘Public Order and Safety’?

Politics
Mar 14, 2025
1:05

John Yoo: Musk’s Audits Are Part of Alexander Hamilton’s ‘Energetic Executive’

Politics
Feb 10, 2025
1:05

Lord Andrew Roberts on Winston Churchill and the US-UK Special Relationship, Then and Now

Politics
Sep 26, 2024
1:05
No items found.
No items found.
Becoming a Deficit Nation

The Roosevelt Administration tried to revive the World War I debt collection policy, only to see Hitler cancel reparations payments, dismiss the terms of the Versailles Treaty, withdraw from the League of Nations, and remilitarize Germany with malign intent.

Will Morrisey
Politics
May 19, 2025
‍The Pope Who Foresaw the Horrors of Communism‍

Pope Pius IX denounced communism as a moral monstrosity in 1846.

Jonathan Miltimore
Politics
May 16, 2025
Closing DOE, Funding Federal School Choice

Every child in America would benefit from school choice, not just those fortunate enough to be wealthy or live in states that already generously support school choice.

David C. Rose
Politics
May 14, 2025
Cicero's Law

Lawless Republic is the story of the life and times of Cicero.

Graham McAleer
Politics
May 9, 2025
No items found.