31 Pages Posted: 11 Jan 2018
Date Written: January 11, 2018
The flow of executive orders, presidential memoranda, proclamations, determinations, executive agreements, national security directives, signing statements and other pronouncements emanating from the early days of every White House administration — what presidency scholar Phillip Cooper calls presidential direct actions — serves as a lightning rod for claims that the president is engaged in a “power grab.” Not infrequently, however, one president’s grab is about taking back another president’s grab. This certainly was the case during the year of the Trump administration, but President Trump is by no means unique in this regard, for many of his predecessors did the same to their predecessors. The reality is that the act of revoking executive orders has become one of the principal strategic political uses of direct actions by recent presidents.
In this Article we probe this practice using a framework we developed in a previous article, Regulatory Exit, in which we examined the design and use of exit strategies in the administrative state. Exit lurks in the background of the administrative state — the question is whether it should figure more prominently in the foreground, as a matter for intentional design when new regulatory or benefits regimes are being hatched. We argued that it should and set out a framework for four types of exit strategies, showed which are most appropriate for promoting certain behaviors of public and private actors, and examined the challenges that each type of exit raises. In all respects, however, our focus was on legislatures and agencies — on legislative exit and administrative exit. We left out the role of presidential exit because it did not seem as important. Given the concerns that have been raised about the Trump administration’s rapid and sweeping reversal of President Obama’s direct actions, though, this omission appears more and more as a major gap in legal and policy scholarship.
While there is a robust literature on specific types of presidential direct actions, it has not considered them as part of a broader exit strategy. This Article closes that gap by extending our analysis of regulatory exit to the president, examining the different types of presidential exit and how they are employed. Part I explains the exit framework we set out in our 2015 article, describing each of the four categories with illustrative examples. Part II reviews the range of presidential direct actions and scholarship on how presidents have employed them to exit from prior presidents’ direct actions. Part III joins these together, mapping the exit framework onto presidential exit in four separate case studies that illustrate the exit categories. Part IV analyzes how Congress (when it delegates direct action authority to the president) and the president (when exercising direct action authority) can influence and constrain successor presidential exit. We also examine in Part IV the innovative strategy of “symbolic exit.” This has been the Trump administration’s signature approach of announcing exit but not following through, leaving it to Congress, agencies, or future presidential action to make the exit complete. This is as much a political as a legal strategy and forces us to re-think the nature of exit in the administrative state.
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