BUILDING A PRESIDENTIAL legacy out of executive actions can be like building castles out of sand—both risk being wiped out by the changing tides. Donald Trump spent much of his presidency playing in the sand. His lasting legislative accomplishments—a conventionally Republican tax cut, chiefly, and a worthwhile, albeit modest, sentencing-reform law—are few in number and hardly embody his hard-nosed populism. The most sensational bouts of Trumpism came instead through executive fiat: the order to build a border wall with Mexico, a ban on transgender Americans serving in the military, and the steady campaign to loosen pollution controls. A new administration means new rules. President Joe Biden has already rescinded many of those actions. Given his current pace and the vigour of his appointees, he may even achieve something like total de-Trumpification of federal policy.
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The executive orders have been coming at an extraordinary clip. The first tranche were breezy values-signalling measures on high-profile controversies. On his first day on the job, Mr Biden posed behind the Resolute desk of the Oval Office beside a stack of 17 immediate actions—undoing his predecessor’s decisions on immigration (like banning entry from several Muslim-majority countries), climate change (by leaving the Paris climate agreement) and covid-19 knownothingism (by not mandating mask-wearing on federal property). The deeper-cleaning orders, on matters that provoke comparatively little public interest and much litigation, come later.
Most Americans misunderstand the executive actions taken by the president and his various agencies—which are generally treated as having the force of law—as some sort of imperial, instantaneous process. This is incorrect. The bounds of executive power are neither nebulous nor limitless, but set by Congress. In some arenas, such as regulating pollution or immigration, Congress has delegated considerable discretion to the executive branch. That is why they are the subject of vacillation from one administration to the next. In other areas, like elementary and secondary schooling, federal authority is more circumscribed.
Some consequential changes really do require only the stroke of the presidential pen. Mr Trump had channelled money for border-wall construction through a simple proclamation of a national emergency—something that Mr Biden was able to end with little fuss. He was also easily able to cancel guidance urging prosecutors to aggressively go after those illegally immigrating across the Mexican border. But other changes, like undoing the nearly 100 environmental deregulations of the Trump era, are much more arduous.
That is because of the Administrative Procedure Act (APA), the most important act that Americans have never heard of. It requires a rigid process for issuing new rules. A federal agency must ordinarily release drafts of its proposed rule (grounded in the legal authority given by Congress), allow the public a period to comment and then amend it accordingly. Separate requirements mean that regulations must be accompanied by cost-benefits analyses, which can span hundreds of pages of economic and epidemiological modelling, to justify them. Courts scrutinise these administrative actions and costings when new rules are challenged—as they often are. Improper accounting or shoddy adherence to the APA are easy ways to get them thrown out in court, which requires the entire process to restart from scratch. Litigation can stretch for years. But once a rule survives judicial scrutiny, undoing or revising it later requires another go-around.
It will help Mr Biden that the Trump administration was not very adept at administrative law. A tracker by the Institute for Policy Integrity, a think-tank housed at New York University (NYU) law school, found that 80% of lawsuits against the Trump administration’s regulatory changes were successful. Under a typical administration, that number is only 30%.
Many of the failures in court were due to basic errors like not adhering to the APA’s mandatory periods for public comment, or failing to provide reasonable justifications for new rules. Attempts to deregulate still stuck in litigation at the time of the transition, like the previous administration’s effort to weaken exhaust-pipe emissions standards on cars, can be jettisoned without another lengthy rule making process. With a second term, Mr Trump might have waited out some of these legal challenges and seen his changes to regulation become more entrenched. Yet “because Trump was a one-term president, his whole regulatory output is very shaky, and little of it will survive,” says Richard Revesz of NYU.
Executive action is useful not just for wiping away the last man’s legacy but also for sketching your own. Mr Biden will not be content to simply revert to Obama-era rules circa 2016. For one, he has emphasised racial equity much more in his first executive orders than America’s first black president did (a sign of how the party’s base has migrated on these issues). Mr Biden’s economic actions may be a bit to the left as well: he ordered the minimum wage for federal contractors to be raised to $15 an hour compared with the $10.10 rate that Mr Obama ordered six years into his presidency in 2014. On environmental rules, Mr Biden will probably push for ambitious regulation of methane emissions and fuel-efficiency standards for cars, says Paul Bledsoe, a former climate adviser to Bill Clinton. Given that businesses have revised their stance on climate change since the Obama days, there is likely to be less resistance even to a stricter regime.
The process of de-Trumpification may instil some lessons on the limits of relying on transient executive action alone. Early efforts at mitigating the spread of covid-19 and its economic fallout by executive order—like increasing nutrition assistance for poor families by 15%, or mandating companies to manufacture personal protective equipment—can do some good. More important, notes Heather Boushey, a member of the president’s Council of Economic Advisers, will be the pitch Mr Biden has made to Congress: enhanced unemployment benefits, another round of cheques and paid emergency leave. A similar delicate balance between unilateral executive action and more durable legislation will need to be struck on other priorities, chief among them climate change, if Bidenism is to prove any more lasting than Trumpism.■
See also: We are tracking the Biden administration’s progress in its first 100 days
This article appeared in the United States section of the print edition under the headline “Ctrl+Z”