With a stack of executive orders piled on his desk, President Biden wasted no time. According to Newsweek, “President Biden signed more executive orders in the first 12 days of his presidency than the combined number issued by Donald Trump and Barack Obama for the same point in their tenures.”
From revoking the permit for the Keystone XL pipeline and reversing the travel ban targeting primarily Muslim countries, to requiring mask wearing and preventing and combating discrimination, President Biden covered and reversed a wide range of policies with the stroke of a pen. So what is the effect of these orders under the newly elected Biden? And what questions arise as to their legality and constitutionality?
On Lawyer 2 Lawyer, host Craig Williams is joined by professor Michael W. McConnell, director of the Constitutional Law Center at Stanford Law School and Dr. Kevin G. Vance from the Clemson Institute for the Study of Capitalism and Department of Political Science, as they discuss President Biden’s executive orders, their impact, their constitutionality, the ramifications of the immediate reversal of the prior president’s actions, and what’s to come from this new administration.
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Lawyer 2 Lawyer
The Executive Orders of President Biden
Intro: Under Trump, people of a generally you know, right-of-center persuasion were all mad at nationwide injunctions and liberals and democrats defended them. My one confident prediction today is that that the identities of the critics and the supporters of that practice will completely flip.
The Biden Administration has learned from some of those problems that face the Trump Administration early on especially and they look like they’re going to be issuing many, many, many more executive orders over the coming year or two.
Intro: Welcome to the award-winning podcast Lawyer2Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession, you’re listening to Legal Talk Network.
- Craig Williams:Welcome to Lawyer2Lawyer on the Legal Talk Network I’m Craig Williams coming to you from Southern California. I read a blog named May It Please the Court and they have two books out titled How to Get Sued and The Sled. Well before we introduce today’s topic we’d like to take this time to thank our sponsor Lex Reception. Lex Reception is a close-knit team of virtual receptionists dedicated to professionalism, warmth and 24/7 availability for law firms and attorneys. Well with a stack of executive orders piled high on his desk, President Biden has wasted no time according to Newsweek, President Biden signed more executive orders in the first 12 days of his presidency than the combined number issued by Donald Trump and Barack Obama from the same point in their tenures.
From revoking the permit for the Keystone XL Pipeline and reversing the travel ban targeting primarily Muslim countries to requiring mask wearing and preventing and combating discrimination, President Biden covered and reversed a wide range of policies with just the stroke of a pen. So what are the effect of these orders under the newly elected President Biden and what questions arise regarding their legality and their constitutionality? Today on Lawyer2Lawyer we’re going to discuss President Biden’s executive orders, their impact, constitutionality, the ramifications of immediate reversal of the prior president’s actions and what’s to come from this new administration. To help us do that today our first guest is a returning one Professor Michael McConnell, the director of the constitutional law center at Stanford Law School and a senior fellow at the Hoover Institution. From 2002 to 2009 he served as a circuit judge on the United States Court of Appeals for the 10th circuit. Professor McConnell is also the author of the book The President Who Would Not Be King Executive Power Under the Constitution, it’s available from Princeton University Press and also found on Amazon or the Princeton University Press website. Welcome to the show Professor McConnell.
Professor Michael McConnell: Thank you very much it’s nice to be back.
- Craig Williams: And next we have Dr. Kevin Vance from Clemson Institute for the study of capitalism and department of political science where he is a postdoctoral fellow at Clemson University and teaches constitutional law. He was previously a Forbes postdoctoral research associate at the James Madison Program at Princeton University. He received his PHD in political science from the University of Notre Dame. His research interests include comparative and American constitutional law, American political thought, religious liberty, judicial politics and political philosophy. Welcome to the show Dr. Vance.
Dr. Kevin Vance: Hi thanks for having me.
- Craig Williams: Well Professor McConnell I’d like to turn to you first and kind of ask you for a little bit of background on executive orders and their origin within our government structure.
Professor Michael McConnell: Executive orders aren’t even mentioned in the constitution. Abraham Lincoln was the first to call one of his presidential orders in executive order, the prior language was the more royalistic remnant, the proclamation. They go back to George Washington but the important thing to know is that nothing gains any additional legal authority by virtue of being called an executive order. The president can issue, he could pick up the phone and talk to his cabinet officials and issue orders. An executive order is simply a more formalized written version but in the last over the last several presidencies Trump and then Obama and now President Biden and spades have been using executive orders much more extensively than ever in the past and this causes a lot of people to wonder you know, is the government becoming more centered on the single president or do we still have the three branches that are that are co-equal.
- Craig Williams: Well Dr. Vance said the new president has been deploying memorandums and as Professor McConnell mentioned presidents for a long time have been issuing proclamations and there are other executive orders that are or types of things that are out there, what are the other — what’s this what’s the breadth of what the president does to issue orders?
Dr. Kevin Vance: Well as you say all of these things are executive actions and they’re given different names but essentially they all take the form of the president directing members of the executive branch in terms of how to pursue the policies of the administration and how to carry out the law and if congress has delegated them powers then how to craft specific rules carrying out those delegated powers. And the main difference between the different types of administrative — I’m sorry the executive actions is that executive orders are more formal than the most formal, form of it they’re published in the federal register memoranda are less formal and proclamations sometimes take the form of being formal ceremonial events like there was a proclamation issued on inauguration day where Biden announced a day of national unity but they’re also used for more substantive things like Biden has used proclamations to rescind some of the previous administration policies.
- Craig Williams: Is one of the more famous proclamations that we know the emancipation proclamation?
Dr. Kevin Vance: Yes that’s right and then I think also my favorite the thanksgiving day proclamations are another famous example of a kind of quasi-ceremonial use of the proclamation.
- Craig Williams: The Pardoning of the Turkey.
Dr. Kevin Vance: Right.
- Craig Williams: Well Professor McConnell if it’s not in the constitution how do we derive this power other than Abraham Lincoln just taking it by the horns is this a Marbury versus Madison situation?
Professor Michael McConnell: Oh not really it’s — we have to look at each and every individual executive order and ask does the authority to issue this come either from the constitutional powers vested in the president by the constitution itself or from statutory authorities and the vast majority of executive orders are actually pretty humdrum affairs with relatively little legal significance some of them are very important but nonetheless lawful and then you know each of the modern presidents has issued some executive orders that go beyond any plausible claim of authority under either the constitution or the statutes.
- Craig Williams: And those are the ones that get challenged in courts well that brings up a really interesting point, when we have one president basically overturning what another president has done in the past what issues arise from that or do we have continuity issues do we have any types of constitutional issues coming from that?
Professor Michael McConnell: Well Craig I think it used to be thought that any presidential or executive action can be reversed through the same procedures through which it was initially instituted which means that you know if a president chooses to do something through an executive order, the successor can reverse that, also through an executive order but just a few years ago in a challenge to one of President Trump’s executive orders reversing an order by President Obama, the United States Supreme Court for the first time in an opinion by Chief Justice Roberts held that there’s some limits on that and that when the president is reversing of the decision of the predecessor that he has to be able to show some reasoned basis for that, some reason why it was necessary to make the reversal and already one of President Biden’s executive orders one of the 40 that he has issued has been challenged and a federal court has already enjoined its enforcement partly on the ground that he showed no particular reason for the reversal of policy.
- Craig Williams: Well Dr. Vance how do we what scale do we put this level of rationality or reasonableness on overturning an executive order from the past is that — are we at the civil standard of beyond a reasonable, I mean a criminal standard beyond a reasonable doubt or we are more on the scintilla of evidence side of things.
Dr. Kevin Vance: Well like Professor McConnell I was surprised by the decision from a couple years ago when the Trump’s attempt to rescind the DACA order was overturned by the Supreme Court. I think that the Biden Administration has taken lessons away from that given the way that they’ve structured some of their executive orders this time and when they announce that they want to sort of reinstitute the DACA policy of the Obama administration it hasn’t actually been formally promulgated yet, so I’m assuming it’s going to be very carefully drafted in order to avoid any problems with the administrative procedures act.
- Craig Williams: Professor McConnell where do you fall on that explain your reasons standard?
Professor Michael McConnell: I was surprised to see it, I did not think that the that it was correctly decided but what was sauce for you know the Trump goose is, now sauce for the Biden gander and it would certainly be inappropriate for the court to flip and say that okay well this was a restraint on Trump but it is not going to be a restraint on Biden.
- Craig Williams: Right Dr. Vance what are the standout executive orders in your mind of what we’ve seen so far from the Biden Administration?
Dr. Kevin Vance: Well I think the — I mean the ones that he had been campaigning on about mask wearing in federal buildings and moving toward maybe a 15-dollar minimum wage for federal employees you know, those are some of the big ones but honestly there have been you know there’s a headline in almost every single one of these 28 orders so far. So I think it spans the whole breadth of controversial policies, I should say most of them I don’t think take the form of directly instituting a new policy though some of them do, many of them take the form of directing other executive agencies to begin crafting policies in light of the administration’s generally preferred policy plan but I think those are the big ones and the Mexico City policy has been rescinded which reopens foreign aid for being used for overseas, groups that either promote or actually conduct abortions but that’s a more standard thing that happens whenever there’s a change of political party in the White House.
- Craig Williams: Professor McConnell and the orders that have been issued so far, do you see any constitutional issues coming up?
Professor Michael McConnell: Most of them not, most of them seem to be perfectly ordinary I think that the — the one I mentioned before that’s already been enjoined has had actually had two problems this is the order in which President Biden ordered the immigration authorities not to remove persons who have already been found by the illegal apparatus to be here illegally and properly removable and Biden said for 100 days we won’t do that. The second reason that the court gave for holding that that was likely illegal is that it is it violates the statute, so the statute reads it’s very short I’ll read it to you “when an alien is ordered removed the attorney general shall remove the alien from the United States within a period of 90 days” now the president does not under our constitution have unilateral authority to repeal acts of congress and he does not have authority simply to refuse to carry them out in fact the constitution provides that the president shall take care that the laws be faithfully executed and although that leaves a lot of room for discretion in terms of what discretionary enforcement you know how many resources to put behind it prosecutorial discretion you know, what are the stronger cases, what are the weaker cases, the president has a lot of discretion but simply to refuse flatly to carry out the law is not within the president’s authority. So I would say that that’s the most constitutionally questionable so far. Others have been completely normal and in fact I think in many cases reversing highly questionable actions by Mr. Trump so for example President Biden has reversed President Trump’s emergence declaration of an emergency under which he started to spend money on the wall on the border with Mexico that congress had appropriated for other purposes that was at best a dubious action, it was under legal challenge at the end of the administration it was at best dubious and I’m very happy to see President Biden withdrawing from that I hope that he did that because of constitutional principle and not merely because of disagreement with President Trump’s particular policies. Other things he certainly has a right to do like to restore the United States to the World Health Organization that’s within the president’s foreign policy prerogatives and raises no legal issues that I can think of. Then a lot of them are simply meaningless so one executive order tells the federal departments and agencies “to promptly identify actions that they can take within existing authorities to address the current economic crisis resulting from the pandemic” well that means exactly nothing that’s designed to get a headline saying you know Biden is doing something about a problem but it doesn’t actually do anything about that problem but that’s not Biden alone any, you know presidents always do this, they love to be able to issue directives that give them a favorable headline but don’t actually accomplish anything.
- Craig Williams: Well that’s in the realm of politics for sure. Well gentlemen before we move on to our next segment we’re going to take a quick break to hear a message from our sponsor we’ll be right back.
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And welcome back to Lawyer2Lawyer, I’m Craig Williams and with us today is Professor Michael w. McConnell Director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution and Dr. Kevin G. Vance from the Clemson Institute for the study of capitalism and department of political science at Clemson University.
We’ve been talking about President Biden’s executive orders, their impact and some of the constitutional issues but Dr. Vance, Professor McConnell raised an issue early in our conversation that I’d like to get back to and that is how does the range of executive orders that have been issued by President Biden and for that matter former President Trump, how does that affect the balance of power between the supposedly three co-equal branches of government.
Dr. Kevin Vance: Yeah it’s a great I mean a timely question and one that I think will be with us forever but as Professor McConnell said I think it’s indicative of the growth of powers in the executive branch and the sort of weakening of congress’s powers and maybe even the weakening of its desire to really carry out its law-making functions. Some of it I do think is a natural outgrowth of a complicated society that the executive branch will have to formulate specific policies in all kinds of areas where the legislature couldn’t possibly regulate with great specificity but I think these executive orders are on par with the sort of general trend that we’ve been seeing for a long time where the executive branch is becoming more powerful and actually kind of the focus of policy formulation.
- Craig Williams: Professor McConnell how do you see it?
Professor Michael McConnell: Well I think that’s true but I think a root cause of much of this has is the breakdown of American politics into two warring camps. Now there’s nothing new about a two-party system where the two parties both have things policies that they favor and they push for those and they work toward them but I think in the last several years we have seen something — we probably haven’t seen since the middle of the 19th century and that is parties who refuse to talk to one another, refuse to compromise, refuse to deal with each other on principle that is a member of congress who works with the other party is accused of being some kind of a party traitor you know, republicans are called rhinos, republicans in name only it’s as if compromising and trying to get something done is a blot on your political character that’s a poisonous attitude and it makes it basically impossible to have a legislative branch which is co-equal to the president and I think in large part the exaggerated character of the presidency that we have seen under recent presidents is as much a product of congress being unable to get along and work toward mutually satisfactory policy goals as it is any usurpation on the part of the executive.
- Craig Williams: Dr. Vance let’s take this question into the judicial branch. We’ve seen a significant number of challenges to President Trump’s executive orders and obviously at least once so far with President Biden, how do you see that scorecard?
Dr. Kevin Vance: Well I think as Professor McConnell said I think we’re already off to the races when it comes to the courts being very skeptical of some of these executive orders and I want to draw attention to one element of that DHS directive that they tried to put in place a 100 day moratorium on deportations. One of the reasons that the Department of Homeland Security Gave was the COVID crisis and I think if we’re still going to be citing you know 9-10 months into a pandemic this crisis for the inability to execute the law then I think that really does stretch the meaning of prosecutorial discretion and of executive discretion. I think that many of the big court battles will probably be in the future where already in these executive orders the administration has suggested that especially in the area of transgender rights, there will be new regulations coming down the pike and I suspect that many of those will be challenged depending on how they’re implemented. So far we haven’t seen any re-imposition of the kind of Obama-era application of the contraceptive mandate that applied to the little sisters of the poor but that’s something else that the Biden Administration has promised will be coming.
- Craig Williams: Interesting, well Professor McConnell as you have a unique perspective as a jurist on the 10th circuit, how does the court system view the equality of the branches.
Professor Michael McConnell: Well the federal judiciary is fiercely independent but and doesn’t believe that it should just be a rubber stamp for whatever the executive branch does and in addition to that there’s a structural feature of our government that I think goes maybe not as much notice as it ought to which is that president’s name federal judges during their term of office and then at the end if there’s a change of party administration the new president generally comes in with a judiciary that has been named primarily by the other party. Now it’s a little bit less so now because President Trump was only a one-term president in a typical two-term eight-year presidency, presidents typically name approximately 40% of the federal judiciary and when you take into consideration you know, past judges who are named by the same party that generally means at the end of their term judges named by that party or a pretty good majority that’s not quite true today, it’s true in a few of the federal courts of appeals but not all of them but that does tend to mean that presidents encounter a judiciary that is skeptical of their program, and thus you get a lot of pushback from judges especially when presidents early in their terms are aggressively pushing the envelope. Now people don’t like that of their own presidents, I remember I was a lawyer in the early days of the Reagan Administration and I thought a lot of that pushed back was wrong it made me mad as a young man but it may be — but it’s a bipartisan feature it happens to presidents of both parties and it may be part of the checks and balances of our system.
- Craig Williams: That’s a very interesting observation. Dr. Vance do you have a thought on that?
Dr. Kevin Vance: Yes I think it’s part of our system, it’s certainly an established part of our system now but just to go back to this moratorium on deportations and the injunction issued by the federal judge, 80 years ago that kind of thing would have been unheard of for a federal judge to issue a nationwide injunction and so it’s definitely a power of the judiciary that has been growing especially in the last administration but really just in the last few decades.
Professor Michael McConnell: And watch everybody change their positions because under Trump, people of a generally you know right-of-center persuasion were all mad at nationwide injunctions and liberals and democrats defended them. My one confident prediction today is that that the identities of the critics and the supporters of that practice will completely flip.
- Craig Williams: It seems very likely given what you two have described well gentlemen at this point we’ve just about reached the end of our program so I’d like to take this opportunity to invite both of our guests to share their final thoughts and what other information they’d like to so Dr. Vance I’d like to turn first to you.
Dr. Kevin Vance: Sure I think one thing that looking at the whole scope of these executive orders issued by Biden and comparing them with maybe with Trump’s early executive orders at the beginning of his administration, one big thing that sticks out to me — there’s two things that stick out to me one is that they both list out the sort of policy goals that are shaping the executive order at the beginning of these executive orders and Trump’s goals tend to be very simple, things like security efficiency and government et cetera. But these Biden executive orders many of them lay out much more detailed policy programmatic proposals in the introductory paragraphs with soaring language about the purpose of liberty and human dignity and so forth and I think also the other big difference that stands out to me is that many of the Biden executive orders seem oriented toward really using the administration and the administration’s power and the power of administrative agencies to carry out its policy agenda and when we compare that to the early Trump executive orders they really — they almost try to hand them themselves by making it more difficult to add spending rules, administrative agencies without taking away two other spending rules, they imposed a strict cost-benefit analysis requirement and so they really tied their own hands to some degree.
And so I think the Biden Administration has learned from some of those problems that face the Trump administration early on especially and they look like they’re going to be issuing many, many, many more executive orders over the coming year or two.
- Craig Williams: Well we certainly have something to look forward to Dr. Vance your contact information and how our listeners can reach out to you?
Dr. Kevin Vance: [email protected] it’s my contact info.
- Craig Williams: Great thank you very much. Professor McConnell your final thoughts please.
Professor Michael McConnell: Something that Dr. Vance just said you know triggers this thought that a real difference between Trump and Biden is that Trump was at war with his own administration constantly fighting with his own officials, surprising them blindsiding them and this produced a lot of chaos within the executive branch. I don’t think Biden is like that I think Biden is going to be a team with his appointees. They are going to be you know singing from the same sheet of music. His problem is going to be from the more radical elements and his party in congress and then out and the electorate and wealthy donors who are more radical than he is and if you look at the — if you compare the executive orders that Biden has issued to the lists of the wish lists from the more progressive end of the democratic party what Biden has actually done looks some of them are dramatic but for the most part it’s been weak tea and I think that a lot of the — just as a lot of the conflict was between Trump and his own people within the administration I think a lot of the conflict we’re going to be seeing is going to be between Biden and the more strident members of his party coalition less than a conflict between Biden and his own administration.
- Craig Williams: Interesting and Professor McConnell I understand you have a book.
Professor Michael McConnell: Yes it just came out two months ago from Princeton University Press, it’s called The President Who Would Not be King Executive Power Under the Constitution and it’s about how the framers put together the executive branch and then some case studies about modern times and I started this book when I actually expected Hillary Clinton to be elected the next president I was quite surprised along with many other people and when Donald Trump became president and I think the lessons from the framing — from the founding generation tended to hold true during the Trump Administration and now we’ll get to see whether they continue to hold true in the very different personality administration of Joseph Biden.
- Craig Williams: Good wonderful I look forward to reading your book it’s available on Amazon and Princeton University Press. Well as we wrap up, I’d like to thank Dr. Kevin Vance and Professor Michael McConnell for joining us today, there’s been some memorable shows but this has been one of them it’s been a pleasure having both of you on the show thank you.
Professor Michael McConnell: Thank you.
Dr. Kevin Vance: Thanks very much.
- Craig Williams: Well for our listeners if you like what you heard today please rate us on Apple Podcast to your favorite podcasting app you can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams thanks for listening.
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