Why revoking Trump’s executive orders is not enough to undo its effects

During the 2016 presidential campaign, Donald Trump was incredibly critical of executive orders, especially when it came to how then President Barack Obama used them. “[Obama] he just goes and signs executive orders for everything … because that’s easy to do, ”Trump said to a crowd of supporters in 2016, indicating that, if elected, he would work to dismantle Obama’s executive orders. “I’ll tell you, the only good thing about an executive order is that the new president [can] come and with just one signature, they’re gone. “

And while Trump has revoked many of Obama’s executive orders, he has also approved many of his. In fact, Trump has significantly surpassed his recent predecessors, averaging 55 executive orders a year, compared with 35 orders from Obama, 36 from George W. Bush, 46 from Bill Clinton and 42 orders from George HW Bush, according to with the American Presidency Project at the University of California, Santa Barbara.

More executive orders do not always mean more active policymaking in the Oval Office, however. Historically, presidents have used executive orders for broadly administrative purposes, such as forming task forces or requesting reports. That said, presidents also used executive orders to force heavier policymaking and enforcement instructions, and, as research by political scientist William G. Howell at the University of Chicago shows, these types of orders are becoming more common. Modern presidents have issued nearly four times as many “meaningful” executive orders as presidents who served in the first half of the 20th century, according to Howell’s analysis, and many of Trump’s executive orders, especially on immigration and the environment, fit this bill. category. As a result, undoing these orders can be difficult – logistically and even legally – for President Biden, and many of the results of Trump’s executive orders may persist, even if Biden revokes the orders (something he is already busy doing).

Who undoes whom?

Since taking office on January 20, Biden has revoked 31 of Trump’s 220 executive orders, or 14%, with his own batch of executive orders, according to our analysis of data collected by the American Presidency Project. And, as you can see in the chart below, Biden is working at a much faster pace than other modern presidents to overthrow his predecessor’s legacy.

Biden’s path of revocation has been ordered, as it selectively targets some of Trump’s most controversial executive orders, and scorched earth, as it eliminates toothless orders like building a border wall, which could not be implemented without Congressional appropriations, or one to create the 1776 Commission to promote “patriotic education” in schools in the United States, which was largely an expanded press release aimed at attracting its conservative base.

And while it may seem unnecessary for a Democratic president to be undoing the executive orders of a Republican president who is stepping down, it is not. Although incoming presidents tend to target the executive actions of their predecessor, especially when their predecessor is from the other party, this is not taken for granted. Presidents are ultimately in the business of accumulating power, so if an executive order from a previous president strengthens the influence of an incoming president, he is more likely to keep it than to revoke it. “Presidents often have their own party and ideological motivations, but they also have institutional motivations,” said political scientist Sharece Thrower of Vanderbilt University, who studies repeal. “If something empowers presidents, they generally would like to keep it.” Because of this, incoming presidents often set aside executive orders from outgoing presidents.

However, Trump was quite unpopular when he stepped down, which is one reason why Biden may feel in power to overturn so many of his predecessor’s policies. It is not politically risky. Thrower found in his research that executive orders with a longer life span tend to be issued by popular presidents. In general, these orders are also not so controversial from a legal point of view. Instead, they are consistent with existing laws already passed by Congress or in line with the constitutional authority perceived by the president. Thrower also found that orders that survive administrations tend to be more ideologically moderate.

All of this points to another explanation of why so many of Trump’s executive orders are at risk: many of them were legally dubious, as evidenced by the ongoing challenges that his orders still face in the courts. Nor were his executive orders politically moderate. See the executive order that created the 1776 Commission. Or the executive order that sought to combat “anti-American” diversity training for federal officials and service members. Both were divisive ideological orders designed to appease Trump’s base. And neither order extended the executive’s power.

It makes sense, then, that these types of requests were among some of the first Biden revoked, but not all Biden revocations will be as straightforward.

Momentum

Executive orders may seem like evidence of an “imperial presidency”, but the fact is that they usually undergo extensive scrutiny and review, including from the Office of Management and Budget, before reaching the president’s desk.

Bowdoin College political scientist Andrew Rudalevige told me that this process “was designed to ensure that there is essentially a peer review [of the orders]and, frankly, to protect the president from adverse reactions ”. So this means that the orders that you and I see – those that the president actually signs – have generally been shaped to withstand legal challenges and political resistance, which in turn sets the order for success. In addition, agencies know what’s to come and can implement the president’s agenda quickly, and any legal challenges the order may face will be more restricted.

So, when a revocation occurs, it “doesn’t just change automatically,” says Rudalevige. These orders are generally legally and politically correct. In addition, “the agencies are moving in a certain direction,” said Rudalevige. Once an agency moves in that direction – updating standard operating procedures and perhaps even the agency’s culture – it can be difficult to reverse the course.

See Trump’s executive orders on immigration. Michele Waslin, program coordinator at the George Mason University Immigration Research Institute, who studied Trump’s executive actions on immigration, sees a major cultural shift during Trump’s term, which makes dismantling his orders especially difficult. “In the Trump administration, everything was planned to restrict immigration, to see immigrants as a problem, to see them as a threat,” she said. This even affected legal immigration. Waslin described it as a “slow march” effect, which means that Trump’s executive orders treating illegal migration as a threat likely affected the way legal migration was handled as well. “You can significantly delay legal migration to the United States through staffing practices and the guidance they receive,” said Waslin.

This means that it may not be enough for Biden to simply revoke Trump’s orders to intensify the scrutiny and screening of immigrants and refugees or to ban travel from certain countries. For the Biden government to really turn the tide on issues largely related to immigration, the relevant agencies “will need to be significantly rebuilt or reconstituted,” Waslin told me.

This illustrates the positive and negative sides of executive orders. They give presidents the ability to act first and quickly, forcing other branches of government to respond if they object – but it can be difficult to undo them, as the executive and its agencies are already moving in the meantime.

That is why the other branches of government usually do nothing in response to executive orders. On the one hand, Congress is largely hampered. Any bill introduced to overturn a president’s order would have to resist a presidential veto. Courts, on the other hand, have been a more formidable counterweight to the executive branch, overturning several executive orders throughout history that clearly violate the constitution or statutory authority. But they still tend to side with the Executive most of the time.

This leaves a new government as the most suitable opponent to undo a president’s executive orders. But that does not mean that it is easy. As Rudalevige explained, some of these orders “have some staying power” and quickly become entrenched in government and bureaucracy. However, presidents will still try to overthrow them, which is one reason why much of policymaking in the United States is destined to come and go from one administration to another.