After several years of frustration with Congress, President Obama famously said, “We’re not just going to be waiting for legislation. I’ve got a pen and I’ve got a phone, and I can use that pen to sign executive orders… that move the ball forward.” Much has been written about the use of executive orders by recent presidents to accomplish policy objectives, without waiting for Congress, or even to thwart Congress.
President Biden has drawn fire for the unusual number of executive orders, starting his first day in office. That was partly a result, no doubt, of his desire to swiftly keep several campaign promises to reverse Trump-era policies (just as President Trump had used the procedure to reverse Obama-era policies), and partly because Biden was not hindered by the customary inauguration day parades and festivities (cancelled because of COVID).
Biden issued over 50 executive orders and directives during his first two weeks, and some observers fear that is how government will operate henceforth. Trump signed his 30th executive order on his 100th day in office, the most by any president since Harry Truman.
Biden’s orders address a wide range of policies, but more relate to energy and the environment than any other issue. Among his first-day actions, he signed a letter re-joining the Paris climate accord. That was only possible because Trump had withdrawn the U.S. from the agreement by a similarly simple declaration. Several experts had unsuccessfully advised Trump to send the measure to the Senate as a treaty. It would have been soundly rejected, making rejoining impossible without another Senate action. Obama maintained that it was only an executive international agreement, not a treaty. Trump’s approach, and now Biden’s, accepted that interpretation, and the regulatory consequences to the U.S. economy will play out accordingly. The agreement requires signatory nations to make more ambitious commitments to reducing emissions every five years. It was signed in 2016, meaning second-round commitments are due this year. Most nations have not met their first-round targets, and the Biden administration has yet to say what the U.S. might do when its own commitments come due.
Biden also issued an order requiring every department to review all Trump-era “regulations, orders, guidance documents, policies, and any other similar agency actions,” and repeal those inconsistent with Biden environmental policies (Trump had issued a similar order four years earlier). The instruction specifically targets several high-profile Trump deregulatory actions, such as the methane emissions rule, the vehicle fuel economy rule, home appliance standards, and EPA’s greenhouse gas rules for power plants. However, a number of Trump-era deregulatory actions may prove more resilient as the new Administration tries to reverse them.
One article, in the New York Times, concluded that “Restoring Environmental Rules Rolled Back by Trump Could Take Years.” The Biden Administration has vowed to reinstate more than 100 environmental regulations rolled back by Trump, some of which were repealed through the long and arduous regulatory process – some took nearly Trump’s entire four year term – so the same process must be repeated to change them again.
The Times’ analysis, based on research from Harvard and Columbia Law Schools, counted almost 100 environmental rules the Trump Administration had revoked or reversed. Almost thirty of those relate to air pollution and emissions, eight to water quality, nine to toxic substances, a dozen to energy and mineral production, and fifteen to wildlife, including removal of the gray wolf from the endangered species list. Reversing them all will be difficult and time consuming, but likely nevertheless.
Some of the new (reinstated Obama) policies may prove ominous for Colorado, especially the power grab known as “Waters of the U.S.” and the coal industry-killing “clean power plan.” The Bears Ears and Grand Staircase-Escalante National Monuments will soon be returned to their original size, and newly issued oil and gas leases will likely be cancelled, though taxpayers will be on the hook for refunding the money.
Pundits argue about the legal authority of presidents to make laws with the stroke of a pen, but policies made by executive order surely can be unmade the same way. For example, Obama administratively blocked construction of the Keystone XL pipeline, Trump reversed him and issued the permit, and now Biden has rescinded it – all with the stroke of a pen, not an Act of Congress. It’s hard to blame presidents, who want to reverse their predecessor’s policies. They will continue to use executive orders to do so, until Congress decides to reassert its constitutional authority to make the laws.
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