Decisions and Revisions That a Moment Will Reverse
Everything old is new again. "We can also expect the Democrats to be, all of sudden, alarmed, preoccupied, and horrified with executive overreach—thanks entirely to the unilateral expansion of executive authority by Obama, about which they were oddly silent when it mattered. The portfolio of implicit new powers Donald Trump will inherit from the outgoing president is staggering. The constitutional-law professor in the Oval Office routinely asserted the unilateral authority to act on his policy preferences based on the founding charter’s penumbras and emanations solely because Congress would not. As a result, Trump will not only have the power to repeal existing executive orders, as have all of his predecessors, but is also being bequeathed “executive actions” that already have questionable legal authority. Trump has been provided by immediate precedent with a new set of tools to try out when he sees fit. He might, say, delay the implementation of laws regardless of their legislative terms, because Barack Obama did just that when it came to the implementation of ObamaCare. If he wants to amend existing law and encounters a recalcitrant Congress, Trump can simply order executive agencies or department to issue waivers or statutory interpretations (i.e., the birth-control mandate that somehow was found to arise out of ObamaCare) that are in conflict with the letter of the law but comport with his personal preferences."