No one can say he didn’t warn. President Joe Biden has pledged, more than once during last year’s campaign, that he will issue multiple executive orders – those executive orders that depend only on one fell swoop on mandate – to reverse a range of policies under the administration of Donald Trump. Even so, the Democrat wasn’t supposed to go that far.
According to data from the White House and the Federal Register, the official U.S. Gazette, Biden has lowered 29 executive orders since taking office. In the same period, Trump signed 9 executive orders and former President Barack Obama (2009-2017) another 9. Since Franklin Delano Roosevelt (1933-1945), who reigned during the Great Depression and World War II, a president he didn’t rely so much on unilateral action to govern.
The attitude contrasts with the mantra of union and bipartisanship with which Biden was elected. But, analysts say, that’s not even the biggest problem. The danger for a government that abuses executive orders is that its actions end up being fleeting, reversed as soon as someone else assumes the presidency.
Trump, for example, was one of the champions of executive action, in large part because of his inability to negotiate with Congress to pass laws. The Republican signed 215 executive orders in four years in office, against 146 for Obama in the first term and 128 in the second.
As a result, much of what Republicans saw as Trump’s legacy has now been overthrown by Biden: the US withdrawal from the Paris Climate Agreement and the World Health Organization, the ban on transgender soldiers in the armed forces, the veto on the entry into the USA of people from certain countries with a Muslim majority, the release of funds for the construction of the wall on the border with Mexico.
It is much easier to put an end to executive orders than laws passed by Congress.
Trump’s two significant legislative achievements, lowering taxes and reforming the criminal justice system, will outlast his executive orders, for example.
Both of these projects were approved with bipartisan support after months of negotiation and can only be reversed with another general effort in Congress. In Obama’s case, the so-called Obamacare – the reform of the American health care system that passed the legislature – was bombed throughout the Trump administration, but it survived.
Trump’s first decree when he took office in 2017 was precisely to end Obamacare. But a presidential decree cannot invalidate the legislation, and even repeated attempts by Republican lawmakers have failed to reverse the program. The nuclear deal with Iran, an executive action by Obama, was canceled by Trump with a pen.
“Just as Trump took on the mission of undoing everything Obama had done, Biden reverses Trump’s adventures,” says Geraldo Zahran, a researcher at the National Institute of Science and Technology for U.S. Studies (INCT -INEU). “But in addition, part of the decrees are linked to the Covid pandemic, which is a legitimate situation for the use of these measures, comparable to the context of Franklin Roosevelt.”
Adding up all the executive actions of the first 20 days of the Biden government, the numbers are even more impressive: there were 29 executive orders, 13 memos, and 8 proclamations.
All allow the president to rule only with his pen: these are determinations that come directly from the Oval Office of the White House, different from laws, which require enough votes to pass through the House and the Senate.
But executive decrees have more power: they are binding on government authorities or entities, binding and have the force of law – provided they do not violate the Constitution. The notes are similar, but do not need to cite the legal authority of the president or have their budgetary impact assessed. Proclamations have a more ceremonial role, more like an orientation.
Normally, presidents only appeal to executive orders when they are clearly unfavorable to Congress. Obama, for example, adopted the pen and phone approach during the last two years of his second term, when the majority in the House and Senate were Republicans and obstructed any legislative proposal championed by the president. Biden started right away, even with a (tight) majority from both houses.
In the House of Representatives, Biden’s party currently has 221 seats, compared to 211 in the hands of the opposition. In the Senate, the dispute is even more intense: there are 50 Democrats (including two independents who vote with the acronym) and 50 Republicans. But since the tiebreaker falls to US Vice President Kamala Harris, in practice the government has a majority in the House.
In addition to executive decrees weaker than traditional legislation, they have other drawbacks.
Congress cannot overturn the decrees, but it can pass legislation to undermine these actions by vetoing the release of funds for their implementation.
There are also courts. Trump’s decrees banning Muslims have been repeatedly overturned by the courts and ended up being accepted in a very dehydrated version. One of Biden’s actions, a 100-day moratorium on evictions, has already been blocked by a federal judge.
A major side effect of executive actions is to alter relations with the lawmakers of the party that is out of power.
“The pace of these executive orders may begin to generate animosity among Republicans,” said Carlos Gustavo Poggio, professor of international relations at Faap.
This can become an obstacle when it comes to approving measures that do not accept the shortcut of executive orders, like the Covid Stimulus Act.
Biden is trying to pass a $ 1.9 trillion pandemic assistance package through Congress. The project has issues facing opposition from Republicans, such as increasing the minimum wage for federal government employees and food aid.
Unless he can use a mechanism called reconciliation, which allows the Senate to legislate by a simple majority, Biden will need at least some goodwill from Republicans.
“Biden is betting he will be able to implement an ambitious agenda without too much negotiation with the Republicans, at least for now. It’s a risk, ”Poggio says.
Pen power
The different mechanisms
Executive order: has more power; it is a determination to bind government authorities or entities and has the force of law, if it does not violate the constitutional memorandum: like the executive decree, it does not need to cite the legal authority of the president, nor to have its budgetary impact evaluated Proclamation: With ceremonial paper, it works as a guideline
Main topics covered by Biden
Fight against Covid-19: In the early hours of his tenure, he suspended the process of leaving the United States from the WHO (World Health Organization) and reinstated advice in the White House to coordinate the response to Racial inequality of the coronavirus: Determined the decrease in the use of private administration prisons and the strengthening of the application of anti-discrimination measures in the real estate market, in addition to emphasizing the commitment to the tribal sovereignty of the Indians Environment: targeted the oil and gas industry by banning further exploration on public lands and reducing fossil fuel subsidies, in addition to putting in place a series of policies to encourage the economy in a sustainable manner; also cites the protection of the Amazon rainforest Access to health: opening of a new window for the hiring of health plans and resolution of abortion problems Immigration: suspension of the construction of the wall at the border with Mexico and creation a working group to reunite separated families