With first wave of executive actions, Biden targets Trump's legacy

WASHINGTON (SBG) — President Joe Biden signed an executive order Monday reversing his predecessor’s ban on transgender Americans serving in the military, as he rapidly deploys executive actions to dismantle policies President Donald Trump implemented under the same authority.

Biden signed 30 executive actions in his first three days in office last week, and more executive orders are planned every day this week. Nearly half of those initial actions were intended to revoke or revise actions Trump signed during his four years in the White House.

By Monday afternoon, Biden will have signed more executive orders than Trump did in his first 100 days in office. Within his first two weeks, Biden’s total could rival the 50 orders signed by President Harry Truman in his first 100 days in 1945.

Biden aides told The New York Times the crush of executive actions was not driven by a particularly expansive view of his authority but instead a reaction to the damage done by Trump’s policies, many of which were instituted by executive order. The incoming administration also felt a need to act quickly to address the coronavirus pandemic and prevent severe economic damage.

Biden expects to rely much less on executive actions and work more closely with Congress in the weeks and months ahead, aides say. However, much of his agenda would require some Republican support in the Senate, and other recent presidents have turned to unilateral action when bipartisan compromise proved elusive.

“I think what’s happened in the last 20 years is, because of the increased difficulty of actually legislating, it’s been more and more tempting for presidents to use executive orders and get things done with a stroke of a pen,” said William Araiza, an expert on administrative and constitutional law at Brooklyn Law School.

According to Andrew Rudalevige, a professor of government at Bowdoin College and author of “The New Imperial Presidency: Renewing Presidential Power after Watergate,” presidents in the mid-1900s regularly signed 50 to 100 executive orders a year, but many of those were micromanaging matters like personnel or land use that no longer require a president’s signature. Since the 1980s, they had been used less frequently, but Trump ratcheted it up again, issuing nearly as many in four years as the previous three presidents did in eight.

Still, Rudalevige stressed the number of orders signed by a president is not an especially instructive figure, because there are many other types of directives the White House can issue that are harder to track. President Barack Obama signed relatively few executive orders, but he exerted executive power aggressively through other means like presidential memoranda and regulatory actions.

“We’re seeing a relatively constant use of this aggregate set of unilateral policy directives from presidents,” Rudalevige said.

Presidents Bill Clinton and George W. Bush issued several executive orders in their early days in office, including some revoking their predecessors’ policies. Obama and Trump were more active in reversing existing positions and staking out their own with executive power at the start of their presidencies.

With Democratic majorities in the House and Senate, Obama grew less inclined to act alone in his first two years, shepherding a stimulus package and major health care reform through Congress. His reliance on executive actions to accomplish significant policy changes accelerated once Democrats lost control of Congress and most substantive legislative activity ground to a halt.

“We can’t wait for an increasingly dysfunctional Congress to do its job,” Obama said in 2011 as his priorities stalled on Capitol Hill. “Where they won’t act, I will.”

Obama faced frequent criticism and numerous lawsuits from Republicans for exceeding his constitutional authority. Courts sometimes agreed and invalidated his actions, but many of them remained in place. The legality of his Deferred Action for Childhood Arrivals program—which Trump unsuccessfully sought to end through executive action and Biden signed an order to defend last week—is still unsettled.

As a candidate, Trump accused Obama of taking “the easy way out” by turning to executive orders rather than negotiating with Republicans. However, once in office, Trump quickly embraced them as a way to advance his priorities and sidestep Congress, even when his party controlled the House and the Senate.

President Trump often tested the boundaries of executive authority with actions that drew immediate legal challenges from Democratic state attorneys general and advocacy groups. Republicans who hammered Obama for overreach were mostly silent, and Trump bragged about the power he could wield.

“When somebody’s the president of the United States, the authority is total,” Trump claimed at a White House press conference last spring.

According to legal experts, the president’s authority is far from “total,” but the limits are somewhat subjective. Congress has delegated very broad powers to the presidency in recent decades, and federal courts have frequently deferred to the White House.

“Their power is what the Constitution says or what’s delegated by statute, but that’s often pretty vague,” Rudalevige said.

Trump’s 220 executive orders covered a vast array of subjects of varying degrees of significance. Some drastically altered U.S. policy on immigration, defense, health care, and other issues, but others were more symbolic, either to give the impression of progress or to fire up the conservative base.

Biden has targeted both big and small orders for reversal, rejoining the World Health Organization and the Paris Climate Accords, ending some restrictive immigration practices, and getting rid of the 1776 Commission promoting “patriotic education.” His actions are already drawing some legal scrutiny, as well.

Even if presidents seem to have become more comfortable with it, the unilateral approach to governing remains controversial. Progressive groups praised Biden for taking rapid and decisive action on several fronts to overturn contentious Trump-era policies, increase protections for disadvantaged communities, and refocus the federal response to the coronavirus pandemic.

“It is fitting and important that just hours after taking the oath of office, President Biden signed a series of executive actions to reverse some of the worst abuses of the Trump administration and lay the groundwork for something far better than what existed before,” Tom Jawetz, vice president of immigration policy at the Center for American Progress, said in a statement.

Democrats, many of whom bristled at Trump’s exertion of executive power, have been less concerned by Biden’s actions. House Armed Services Committee Chairman Rep. Adam Smith, D-Wash., applauded the president Monday for getting rid of Trump’s ban on transgender Americans serving in the military.

“In just the first week of the Biden administration, the President has delivered on a number of promises that will help create a more perfect union that reflects our values,” Smith said.

Biden has many critics, as well. Some conservatives promptly accused the new president of overstepping his authority, endangering the public, and ignoring the will of tens of millions of Americans who did not vote for him.

“The American people want a president who puts their interests first and works with lawmakers in both parties on solutions,” said Kay James, president of the Heritage Foundation. “With these initial actions, the Biden administration has already signaled that it will take unilateral steps that usurp Congress’ power with divisive policies that will leave Americans less secure and limit their economic opportunities.”

Former House Speaker Newt Gingrich welcomed the rhetoric of bipartisanship in Biden’s inaugural address, but he maintained signing a wave of executive orders reversing Trump policies hours later contradicted the president’s calls to find unity and common ground. Many of those positions—including building a border wall, prioritizing the deportation of undocumented immigrants, and exiting the World Health Organization—were very popular with Republicans.

“He began tearing down everything President Donald Trump did—erasing everything he achieved—no matter how much it benefited Americans or how many Americans supported it,” Gingrich wrote in a Newsweek op-ed Monday.

Experts say Biden’s focus on using executive actions to unravel Trump's policies is an inevitable consequence of Trump relying so heavily on the same powers, which itself was partly a response to Obama doing the same. That trend may lead to large chunks of federal policy “ping-ponging” back and forth every four to eight years.

“I think the last couple of presidents have been pretty aggressive about reversing their predecessors’ handiwork,” Araiza said.

He noted that concern was one reason President Lyndon Johnson resisted pressure from activists to use executive actions to advance civil rights reforms in the 1960s. It would have been much faster than navigating legislation through Congress, but any progress also could have been scaled back just as quickly by a subsequent president.

“It’s easier,” Rudalevige said. “It’s more fragile.”

While the potential drawbacks of setting policy with the president’s signature have been on display in the last week, so has one of the reasons why recent administrations have fallen back on executive actions so often. The Senate is mired in a stalemate over a basic power-sharing agreement, and the threat of persistent legislative gridlock could leave Biden feeling he has little choice but to act on his own in the future.

“There’s a real hole in terms of who is actually taking action in the federal system that ends up being filled by the president,” Araiza said.