Biden’s Use of Executive Actions to Undo Trump Legacy

As is now common after a transition of power in the U.S., the new president, Joe Biden, is making swift and extensive use of the unilateral powers he now wields. By the end of his first full week, he had issued 39 executive actions -- orders, memoranda and proclamations -- many of which overturned similar actions by his predecessor, Donald Trump. Such directives can instantly change the course of American governance without any involvement by the lawmakers in Congress. Some critics worry they can be overused, even abused, by the inhabitant of the White House.

1. What’s an executive action?

It’s a signed directive from the president that can guide operations of the federal government and carry the force of law. The most formal and best known is the executive order. Presidents also can issue memoranda, to direct administrative matters, and proclamations, which can address ceremonial matters (like federal observances) or substantive ones (like trade policy).

2. What gives the president this power?

“The U.S. Constitution does not define these presidential instruments and does not explicitly vest the president with the authority to issue them,” according to the Congressional Research Service. “Nonetheless, such orders are accepted as an inherent aspect of presidential power.”

3. What directives has Biden issued?

The 39 “presidential actions” listed on the White House website as of Jan. 28, his 10th day in office, included executive orders to end the use of privately run prisons, reverse a ban on transgender Americans serving in the military, and help Americans buy health insurance during the pandemic; a memorandum boosting federal reimbursement to states that deploy the National Guard to administer vaccines or otherwise help with Covid-19; and proclamations stopping federal spending on a wall along the U.S.-Mexico border and ending restrictions on travel and immigration from some predominantly Muslim countries.

4. Are there limits on presidential actions?

Yes. An executive order or memorandum carries the force of law only if it’s “based on power vested in the president by the U.S. Constitution or delegated to the president by Congress,” according to the Congressional Research Service. So a directive “that implements a policy in direct contradiction to the law will be without legal effect” unless it’s “justified as an exercise of the president’s exclusive and independent constitutional authority.” While Congress can’t overrule executive actions properly rooted in the president’s constitutional authority, it can undermine them by passing legislation that makes carrying out the order impossible, such as denying funding to a position or office the president creates. Finally, there’s always the courts. Already, at least one of the Biden administration’s first actions -- a Department of Homeland Security directive temporarily halting most deportations of undocumented immigrants -- has been blocked by a federal judge.

5. Who can change an executive action?

Generally, a new president overturns actions of the previous one by issuing new executive actions. (One of Biden’s first-day executive orders was titled, “Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation.”) The so-called Mexico City Policy -- which forbids international nonprofit organizations that receive federal money from providing abortion services -- is perhaps the clearest example of a U.S. policy that flip-flops depending on who occupies the White House. Enacted in 1984 by Republican President Ronald Reagan, the policy was rescinded by Democrat Bill Clinton upon taking office in 1993, reinstated by Republican George W. Bush in 2001, rescinded by Democrat Barack Obama in 2009, reinstated (and expanded) by Trump in his first days as president in 2017, and rescinded again by Biden.

6. Is this a good way to govern?

As might be expected, the party not in power often expresses concern about the president’s use of executive actions. So can people or businesses affected by such actions. A Jan. 27 editorial in the New York Times urged Biden to slow down on executive actions and work with Congress instead to change policies. “Executive actions are far more ephemeral and easily discarded than legislation, which can set up a whipsaw effect, as each president scrambles to undo the work of his predecessor,” the editorial said. “Just as Mr. Trump set about reversing as many of President Barack Obama’s directives as possible, Mr. Biden is now working to reverse many of Mr. Trump’s reversals. With executive orders, there is always another presidential election just a few years off, threatening to upend everything.”

7. Are Biden’s 39 actions a lot?

He’s more than doubled the 14 orders and memoranda issued by Trump by the end of his first full week. According to the American Presidency Project at the University of California-Santa Barbara, Trump went on to issue a total of 220 executive orders (not including memoranda or proclamations), or an average of 55 a year during his four-year term. By comparison, Barack Obama issued 276 executive orders during his eight years in office, or 35 per year, down slightly from 36 per year by George W. Bush and 46 per year by Bill Clinton. The champion of executive action was Franklin D. Roosevelt, who issued 3,721, or an average of 307 per year.

8. Why did FDR issue so many?

To say he had a broad sense of presidential power would be an understatement, since he tried to reshape the Supreme Court and broke what was then an unwritten two-term limit by seeking and winning four terms. There also was the matter of being president during the Second World War. Among his orders was a notorious one, in 1942, granting the War Department broad powers that resulted in more than 110,000 Japanese Americans being forced from their homes into internment camps.

The Reference Shelf

  • The Biden administration’s running list of presidential actions.
  • The Congressional Research Service report on executive orders.
  • A BGOV OnPoint on Biden’s day one actions.
  • The American Presidency Project has tallied executive orders of all 45 presidents through Trump.
  • A 2014 Harvard Political Review article found a correlation between less congressional legislation and more executive actions.

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