According to Axios, the inspiration for this approach may have been a recent article by law professor John Yoo, an influential and thoughtful scholar of presidential power (and, as it happens, my friend and colleague at the American Enterprise Institute). In the article, Yoo criticizes the Court’s DACA decision as a misguided impairment of any president’s power to not enforce a policy that that president deems unlawful. Yoo, tracing the DACA dispute back to its pen-and-phone origins, warns that the Roberts Court has opened a door for presidents to “violate the law” in making new policies in the first place: A president could announce a new policy that violates federal laws and ignores the requisite processes, but his successor would have to go through that same requisite process before repealing the unlawful policy. Indeed, Yoo warns, even if that president “knew that his scheme lacked legal authority, he could get away with it for the length of his presidency” (emphasis added).
Yoo has written eloquently on the fact that DACA and DAPA themselves raised grave questions of President Obama’s failure to “take care that the laws be faithfully executed,” and so his new essay rightly frames this approach to presidential lawmaking as plainly unlawful. But President Trump seems to take Yoo’s article less as a warning against lawless presidential actions, and more as a road map for the remainder of his first (and perhaps only) presidential term.
Yet the Court’s own decision can be read to avoid the problems that Yoo warns against. For while it is true that the Court’s new decision involved an administration’s attempt to repeal a substantive policy, the rule that the Court announced applies equally to administrative actions that both repeal and create substantive policies. That evenhanded applicability makes sense: Federal law applies the same procedural rules to administrative actions creating new policies and administrative actions reforming or repealing old ones, and the Court’s new decision framed its ruling in the same symmetrical terms. It was not limited just to an administration’s attempts to roll back old policies.