My grandparents were avid card players, spending many happy hours with family playing hearts, rummy, pinochle, and similar games. I remember occasionally, when Grandma was a little frustrated that someone was taking too long, she would say, “Well play something, even if it’s wrong.” That’s actually one of the oldest and most reliable strategies, especially in military tactics, explained by the famous 18th Century Prussian General von Clausewitz as, “It is better to act quickly and err than to hesitate until the time of action is past.”
Modern presidents have certainly taken that advice to heart, knowing the “time of action” ends at the end of their term in office. But there is a difference between being decisive and being just plain rash. Former Intel CEO Andy Grove is quoted saying, “Leaders have to act more quickly today, because the pressure comes much faster.” But last-minute actions by outgoing leaders are arguably much less about responding to fast-moving pressure than about avoiding public scrutiny. The tactic is on display at the end of every American president’s term.
Last week President Joe Biden established a new National Monument in Maine, at the 57-acre home of the late Labor Secretary Frances Perkins. It is the 433rd addition to the National Park System, the tenth created by Biden, including an Indian boarding school in Pennsylvania, a 1909 schoolhouse in Texas, and Camp Hale in Colorado – not just the historic 1,400-acre army training camp, but 53,000 additional acres at the Continental Divide where there is no development threat.
Also in December, the Interior Secretary created five new National Historic Landmarks, none of which were voted on by Congress. At the same time, EPA set a deadline for the removal of lead pipes all across America, as well as a new series of fines for methane emissions from oil and gas wells. And the Energy Department is racing to sign 28 new contracts totaling $37 billion for electric vehicle and other green technology subsidies.
Biden may be trying to set a new record for last-minute executive actions. For 20 years, Jimmy Carter held that record, signing 26 executive orders during his last 3 weeks that added 24,500 pages of new rules to the Federal Register. Bill Clinton issued 12 orders during his last 90 days, but added over 30,000 pages, another new record not yet surpassed. Those included new national monuments, federal hiring rules, “ergonomic standards” dictating detailed office chair requirements, and an order that banned new roads on nearly 60 million acres of public lands, effectively walling off vast swaths of land from grazing, logging, energy exploration, mining, off-road recreation, and other uses.
Last-minute actions have become common. Lyndon Johnson issued 9 executive orders in his last 3 weeks, Gerald Ford 17, Ronald Reagan 5, George H.W. Bush 6, Bill Clinton 12, George W. Bush 4, Barack Obama 7, and Donald Trump 14. Many of Trump’s were rescinded by Biden, as has also become common for incoming presidents (Reagan froze the last two months of Carter’s executive orders).
Nor is Biden finished yet. In addition to his new all-time record number of pardons and commutations, his appointees are also rushing to finish regulations to ban menthol cigarettes, set new housing standards, raise minimum wages for childcare workers, and reportedly more than 130 others – possibly including a couple more national monuments.
None of these are responses to crises of any kind, unless you think the end of Biden’s term is a crisis. There is no other deadline making such actions urgent. Some of these late-night regulations may withstand public scrutiny – and transparency is among America’s most important governing principles – but waiting until the end of an Administration to publish them is designed specifically to avoid public debate. Executive Orders, almost by definition, are used by presidents to implement policies they could not get Congress to enact by law, through the democratic republican process we all learned in school.
The new president ought to do two things about it. He should rescind all the rules, regulations, and orders issued during the previous few weeks, and he should vow not to repeat the practice at the end of his own term. This system has become routine but needs to end. Important policies deserve public thought, input, debate, and consensus, not surprise edicts.
Grandma was able to hurry things along by suggesting the slow player “Do something, even if it’s wrong.” But the stakes were low in her card games (no money at all). Not so in government.
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