Show TakeawaysStarting on day one, President-elect Biden will begin reversing President Trump’s policies and imposing regulatory regimes dismantled over the past four years by executive power. Regardless of who controls the Senate after the January 5 Georgia runoff elections, President-elect Biden is expected to take policy leadership via executive action on COVID-19, climate change, immigration and labor, among other areas within his first 100 days in office. While limited in scope, executive action will allow the incoming president to act immediately without waiting for congressional approval or notice-and-comment rulemaking. Swift action, a frequent promise of the incoming Biden/Harris administration, is expected to result in extensive use of executive power by the President-elect to implement his agenda beginning on Day 1. Regardless of which party controls Congress, the President-elect is empowered to issue executive orders and policy directives to reverse many of the Trump Administration’s initiatives and take policy leadership on key aspects of his campaign platform. Immediate action on immigration, climate change, public health and environmental regulation, among other issues, should be expected in his first weeks in office. Further, the Executive Branch will likely issue directives to swiftly implement a nationwide strategy to combat COVID-19 (discussed here). President Biden’s Executive Power in Action While Democrats retained their majority in the House of Representatives after the election, albeit with slimmer margins, President-elect Biden may be forced to govern with a divided Congress should Republicans win at least one of two runoff elections occurring in Georgia in early January 2021. Even if Democrats succeed in capturing both Georgia senate seats to create a 50-50 tie (with Vice President-elect Kamala Harris serving as a tiebreaker), a closely divided Senate will make quick legislative action difficult. As such, President-elect Biden may follow the expeditious route of executive action to combat COVID-19 and implement the Biden/Harris “Emergency Action Plan to Save the Economy,” among other agenda items. Regardless of who controls the Senate, the President-elect will likely use his authority to revoke many of the Trump Administration’s executive orders that disempowered federal agencies. The Biden/Harris Administration will likely bring back, and expand upon, Obama-era regulatory regimes and restructure the Executive Branch to reflect pressing issues such as COVID-19 and climate change. Specific measures that may be implemented by executive power include the following:
But Are They Legal? The Nuts and Bolts of Executive Action Executive action, while an expeditious tool, can only be used in limited circumstances. Its use is often challenged in court—and sometimes even overridden by legislation—making it important to understand the limits of the power, whether the use can be challenged by those who might object, and what can really be accomplished by taking executive action. Executive action, which constitutes executive orders, proclamations and presidential memoranda, enables a president to implement policy change regardless of the majority in Congress and without having to wait through notice-and-comment rulemaking. The President can draw on constitutional authority, statutory authority and inherent authority to issue an executive action. With respect to constitutional authority, Presidents will often rely on Article II of the Constitution, which vests executive powers in the President, requires that the President “shall take Care that the Laws be faithfully executed,” and assigns the President the roles of commander in chief, head of state, chief law enforcement officer and head of the executive branch. Statutory authority, implied or expressed, is granted by Congress, and the President’s inherent authority and “incidental powers” are inferred from the Constitution. The President or another executive branch official acting at the President’s direction can issue executive orders to interpret, implement or administer existing laws. Generally, the president will issue directives to reorganize the structure of the executive branch, take policy leadership, provide guidance regarding how a particular statute should be implemented, or put in place foreign policy initiatives. Additionally, executive orders are a critical tool during times of national emergency. Executive action cannot create new law nor appropriate new funds from the U.S. Treasury, as such powers are vested in the Congress. Executive orders that are issued pursuant to constitutional or statutory authority have the force and effect of law. They can be challenged in federal court by those affected by the order, overturned by a sitting president, or modified or nullified by Congress where they are issued pursuant to congressionally delegated authority. However, while a future sitting president may revoke President-elect Biden’s directives, the courts and Congress are not likely to do so. Courts will grant significant deference to the executive branch striking down executive orders where the courts find that the president lacked authority or that the action was unconstitutional in substance. Congress is unlikely to revoke executive actions as a supermajority would be required to override a presidential veto. Instead, Congress may pass legislation to either support or hinder the implementation of an action, i.e., by removing funding, if it acts at all. The Supreme Court will tend to view executive orders that address national security or foreign policy affairs more leniently than those that involve social, economic and political issues. Below are examples of recent executive actions that have been challenged in court:
These and any accompanying materials are not legal advice, are not a complete summary of the subject matter, and are subject to the terms of use found at: https://www.pillsburylaw.com/en/terms-of-use.html. We recommend that you obtain separate legal advice. What executive orders can the president make?The President can issue executive orders, which direct executive officers or clarify and further existing laws. The President also has the power to extend pardons and clemencies for federal crimes.
What are some examples of executive orders?10 of the Most Consequential Executive Orders and Proclamations in Presidential History. The Emancipation Proclamation (1863) ... . Funding for the Manhattan Project (1941) ... . Mass Incarceration of Japanese Americans (1942) ... . Desegregation of the U.S. Military (1948) ... . LGBTQ Workers Barred from Government Jobs (1953). What means executive order?An executive order is declaration by the president or a governor which has the force of law, usually based on existing statutory powers. They do not require any action by the Congress or state legislature to take effect, and the legislature cannot overturn them.
Which task would the executive Office of the President most likely be responsible for?The EOP has responsibility for tasks ranging from communicating the President's message to the American people to promoting our trade interests abroad. The EOP, overseen by the White House Chief of Staff, has traditionally been home to many of the President's closest advisers.
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