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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 dedesignate 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 dedesignate 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...