Biden Plans to Repeal Trump EOs

Governing without Congress has its price.

Frustrated by a recalcitrant Senate, President Obama enacted a number of major policies by executive fiat. President Trump overturned many of them and did much the same, despite having a sympathetic Congress his first two years. Now, President-Elect Biden is promising to overturn Trump’s orders.

WaPo (“Biden plans immediate flurry of executive orders to reverse Trump policies“):

President-elect Joe Biden is planning to quickly sign a series of executive orders after being sworn into office on Jan. 20, immediately forecasting that the country’s politics have shifted and that his presidency will be guided by radically different priorities.

He will rejoin the Paris climate accords, according to those close to his campaign and commitments he has made in recent months, and he will reverse President Trump’s withdrawal from the World Health Organization. He will repeal the ban on almost all travel from some Muslim-majority countries, and he will reinstate the program allowing “dreamers,” who were brought to the United States illegally as children, to remain in the country, according to people familiar with his plans.

Although transitions of power can always include abrupt changes, the shift from Trump to Biden — from one president who sought to undermine established norms and institutions to another who has vowed to restore the established order — will be among the most startling in American history.

Biden’s top advisers have spent months quietly working on how best to implement his agenda, with hundreds of transition officials preparing to get to work inside various federal agencies. They have assembled a book filled with his campaign commitments to help guide their early decisions.

Biden is planning to set up a coronavirus task force on Monday, in recognition that the global pandemic will be the primary issue that he must confront. The task force, which could begin meeting within days, will be co-chaired by former surgeon general Vivek H. Murthy and David Kessler, a former Food and Drug Administration commissioner.

There has also been a recognition of those around him that he may have to lean more on executive actions than he had once hoped. He can reorient various federal agencies and regulations, and he can adopt a different posture on the world stage.

As one might have surmised from the introduction, I am decidedly not a fan of this process.

We should in fact be part of the Paris Climate Accords. It should be enacted as a treaty, ratified by a supermajority of the Senate. Yes, that’s incredibly problematic in a hyper-polarized polity. It’s also what the Constitution requires.

I haven’t studied the fine points of US membership in the WHO but, of course, we should be a member. Given that it’s a specialized agency of the UN, of which we’re a charter member by treaty, it’s not obvious to me why the President should have the sole authority to determine whether we’re a member.

Re-instituting the “Dreamer” program is humane and decent. But it was enacted because Obama could not get it through Congress. And Congress is supposed to set our immigration policy and the Executive to enforce it. The President shouldn’t have the power to unilaterally decide not to enforce parts of the law.

While I’m less of a “Conservative” than I was a decade, or certainly two decades, ago, I’m still a believer in process and the rule of law. Beyond that, the last four years should have taught us the danger of concentrated power. “Autocracy” isn’t only a bad thing if we’ve elected a sociopath.

To be clear: to the extent that bad policies are in place because Trump has made them via this mechanism, I support Biden undoing them through the same mechanism. But Congress should reassert itself and demand its Constitutional prerogatives in policymaking. And Biden should follow through on his promise to govern in a conciliatory manner—and that means doing the hard work of forging compromise with the legislative branch.

As a side note, I am confident that we will soon have heard the last of the Administrative Procedure Act. Biden has and will continue to surround himself with competent people who know how to govern within the rules.

FILED UNDER: The Presidency, US Politics, , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. drj says:

    But Congress should reassert itself and demand its Constitutional prerogatives in policymaking.

    Of course!

    But what if the majority in one chamber of the legislative branch (representing less than half of the population) simply refuses to care about good governance?

    It’s not “Congress” as such that is the problem here.

    And Biden should follow through on his promise to govern in a conciliatory manner—and that means doing the hard work of forging compromise with the legislative branch.

    Sounds like a solid plan – but only if you disregard reality.

  2. Michael Reynolds says:

    I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

    The Constitution also requires Congresspeople to swear an oath to said Constitution. Republicans have made it quite clear that they do not care about democracy itself let alone the Constitution. If Republicans start taking that oath seriously, we’ll have a Congress able to re-assume its duties.

  3. Sleeping Dog says:

    @james I too, would like to see a return to what had been standard process 50 years ago, but if wishes were horses… Except for arms treaties with the defunct Soviet Union, I can’t remember a treaty that has been submitted by a president of either party in 50 years. Trade promotion agreements were submitted usually under a fast track aegis, because enabling legislation was needed to implement the agreements.

    And frankly, the SC generally allowing Trump to do what he wanted on EO’s has weakened their hand in forcing a return to regular order. Actually I hope Biden, when denied an appropriation by the senate, simply moves money from a McConnell pet project, ala trump and his wall.

  4. mistermix says:

    And Biden should follow through on his promise to govern in a conciliatory manner—and that means doing the hard work of forging compromise with the legislative branch.

    My God. How anyone who watched Mitch McConnell for the past dozen years can write this is beyond me.

  5. OzarkHillbilly says:

    Congress should reassert itself and demand its Constitutional prerogatives in policymaking.

    James? I’d like you to meet Mitch McConnell. Maybe you’ve heard of him?

  6. de stijl says:


    McConnell hosted a dinner party on the night of Obama’s inauguration to institute a hard rule to purposefully thwart any and all D sponsored legislation.

    I am all for amity and comity, but a Pollyannaish approach to compromise will not work and is unwarranted. Give it a shot – yes, but expect the worst.

    In decent times we would have figured out that a raging pandemic requires us to shed the prickliness and join forces, but no. That did not happen.

    Disease and disease containment just got politicized, obviously. Sadly. To date ~ 237,000 Americans have died. Masking is seen to be political. It’s fucking maddening and god damned mindless. JFC it disturbs me.

    A virus does not give a shit about partisan politics.

    I do think it’s going to take a full blown war with China to get Rs to stop fucking about like spoiled brats. Not that I want that. I would choose bratty internal politics over globe killing war every time.

  7. Robert in SF says:

    I told my husband, in all the bravado granted by my naivety to real-world politics, that President Biden (and Democrats in general really) should just have a one and done and approach. A one-strike and you’re out policy that says, “We’ll attempt to honestly and forthrightly work with the Opposition to produce a reasonable compromise bill/policy/budget, but the second we see shenanigans, we’re are going to make use of all available legal methods and recently-historical practices to ‘streamline’ the process and implement our vision.” One warning in broad strokes to Congress, and no do-overs.

    Treat them like adults…tell them “This is the way.”

    Then, if (when) one of them raises one procedural roadblock, or really even hints at it in a speech, then they have turned their backs on the good faith the Democrats had, and boom, leverage all the options we have, as demonstrated by the Trump administration, and get the job done.

    If (when) any of the Republicans object, just remind them, “I have spoken!”, that they had fair warning and chose to ignore it. No arguments, no debates, no counter evidence…maybe express a little confusion as to how the Republicans didn’t understand the clearly and simply explained approach that the Democrats would take…they knew what the ramifications would be, and so they chose to take this path, not the Democrats.

    It’s a little scorched earth, but I am more than a little tired of Democrats trying to be adults in the room, when it’s more like toddlers with handguns on the Republican side (not a 2nd amendment reference…I mean irresponsible people with a lot of power to hurt others…).

  8. de stijl says:

    @Robert in SF:

    I like the way you think.

    I would also institute a “time out” rule. Act like a brat and we will treat you as such. Go sit in the corner for ten minutes and think about what you did and or said.

    The chair has determined that the Honorable Mr. Gaetz is in time out for the next ten minutes. Please proceed, Ms. Smith.

  9. Look, I want Congress at the heart of governing, as that is where the legislature ought to be. I do not like government by EOs.

    The problem is: our system is broken because the legislature is not elected in a way that is representative of the country. Full stop.

    Worse, the GOP seems uninterested in governing via legislative compromise.

    To repeat myself: the House is too small, FPTP is a huge problem, and the Senate is not representative. Throw in a major party that doesn’t even want to make deals and the result is we have been increasingly headed to autocracy.

    I prefer Biden issuing EOs than Trump, but the reality is that our system remains broken even with Trump’s loss.

    (In other words: anyone who thought my criticisms of our constitutional mess were going away with Trump out, well I have some bad news).

  10. Gustopher says:

    We will have an ancient President who is likely going to serve only one term — who is simultaneously a lame duck, and free from having to worry about re-election.

    I would love for Biden to abuse processes like Trump, and force the Republicans’ hand to start explicitly restricting the power of the presidency. Otherwise, the tools of totalitarianism are just lying around the Oval Office waiting for the next President with a fondness for fascism.

    Alas, I don’t think Biden is the man who would do that. And so, we might just be in a brief pause in a slide towards authoritarianism.

    We live in a world where being told to wear a mask brings up cries of fascism from the right, while the federal government putting jackbooted thugs into cities and assaulting protesters is just fine. The right wing is fucking broken. We need to create the environment where they do the right thing in spite of themselves, and dismantle the creeping authoritarianism while not crippling the Presidency.

  11. Just nutha ignint cracker says:

    And Biden should follow through on his promise to govern in a conciliatory manner—and that means doing the hard work of forging compromise with the legislative branch.

    As I said in a previous post, I’m glad that you were able to find your way back to your political/philosophical home. It was a long hard sojourn in the wilderness for you. I look forward to your coming posts decrying the ineffectiveness of Democrats working together with kind hearted patriotic Republican legislators who are only opposing the most liberal President evah out of their respect for the rule of law and sadness over how the Democrats have trampled it.

    You’ve fought the good fight, you’ve kept the faith. May you live in interesting times.