I am going to talk a little about originalism, but more so how it relates to executive power and the power of reversal. The executive power of reversal is the President's power to reverse his predecessors' actions, with or without the coordination of the other branches of government. I will tie this in with some modern controversies.
The argument here is actually just a small point I made with my coauthor, Todd Gaziano, in a piece in the Yale Journal on Regulation where we argued a new President has the power to de-designate national monuments or reduce them in size. (1) It was not expected to be a controversial point about presidential power. But then 121 environmental law professors--I did not even know there were 121 of them--signed a letter saying that no President can reduce or de-designate a national monument. (2) They argued that the Antiquities Act's delegation of power to the President to designate a piece of land as a monument is a one-way ratchet: once a President designates a piece of land as a monument he, or a subsequent president, can never de-designate the monument without the approval of Congress. (3) Of course, I made the point that, "Well, what would happen if President Trump designated all the golf courses to be national monuments?" That means no president will ever be able to de-designate them. And I said, "Don't tell the President this or soon we will have a lot more national monuments."
I was very surprised this restrictive view was widely held. After further research, I came to the conclusion that this is the crux of many of the current debates on presidential power: not simply the use of presidential power to expand the presidency, but rather the presidential power to reverse actions or decisions made previously. I would have thought the presidential power of reversal was natural and inherent, but it has turned out to be quite controversial. This is the topic of a forthcoming article I am working on with Professor Saikrishna Prakash, titled "The Presidential Power to Reverse."
Many of the current debates on executive power are really debates about the executive's power of reversal: What is at issue in the debate over Deferred Action for Childhood Arrivals? (4) Reversal: does President Trump have the power to reverse the use of prosecutorial discretion by President Obama? (5) Does the President have the power to reverse a designation of land as a monument made by himself or a previous president? (6) Does he have the authority to fire Special Counsel Robert Mueller? (7) In that case, the issue is whether the President has the power to reverse a previous Justice Department regulation that places conditions on the President's own power to remove. (8) Can the President terminate the Paris Agreement, (9) as he did just recently, the North American Free Trade Agreement, (10) or even the World Trade organization Treaty? (11) Does the President have the right to withdraw regulations that were issued by previous administrations? (12) Can he subject new regulations to a cost-benefit analysis and replace the old ones? (13) This is an issue of reversal that seems to be the theme underlying these debates about presidential power. The difference is that the President is using these powers to shrink his political authority, rather than expand it, as past Presidents of both parties have done.
I argue that not only is there a presidential power of reversal but that, in some ways, the power is more vigorous than the reversal power of the other two branches. Compare how the other two branches exercise their own powers of reversal. The Supreme Court reverses past Supreme Court opinions with new opinions, and Congress repeals past statutes with new statutes. In both of those cases, like the presidential power, the Constitution's text does not state how to undo past decisions.
We have always assumed the way to undo a past decision is by following the same formal process used to achieve it in the first place. (14) This is clearest with statutes. There is no provision in the Constitution that tells us how to undo a statute. We have always naturally assumed that to repeal a congressional statute, Congress must take the same action and pass another statute that repeals the first. (15) But there is not always a direct correlation for reversal with the presidency. There are actions for which the President must receive the advice and consent of the Senate; however, to undo those actions the President can act on his own to reverse without the Senate's advice and consent. (16) For example, the President, under the Constitution, must receive the advice and consent of the Senate to appoint executive branch officers. (17) But when it comes time to reversing the appointment, most executive positions are undone by a single executive action: firing. (18) Two examples include the officers who contested their terminations in...