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Biden Terminates Much of Trump's Legacy

Updated: Feb 26, 2021

Thus demonstrating the fallacy of governing by executive order. In computer parlance, you delete something just by hitting Ctrl+Z. That's pretty much what Biden is doing...

Building a presidential legacy out of executive actions can be like building castles out of sand - both risk being wiped out by the changing tides. Donald Trump spent much of his presidency playing in the sand. The most sensational bouts of Trumpism came through executive fiat: the order to build a border wall with Mexico, a ban on transgender Americans serving in the military, and the steady campaign to loosen pollution controls.

A new administration means new rules. President Joe Biden has already rescinded many of those actions. Given his current pace and the vigour of his appointees, he may even achieve something like total de-Trumpification of federal policy.

The executive orders from Biden's desk have been coming at a rapid pace. The first tranche were breezy values-signalling measures on high-profile controversies. On his first day on the job, Mr Biden posed behind the Resolute desk of the Oval Office beside a stack of 17 immediate actions - undoing his predecessor’s decisions on immigration (like banning entry from several Muslim-majority countries), climate change (by leaving the Paris climate agreement) and Covid-19 knownothingism (by not mandating mask-wearing on federal property). The deeper-cleaning orders, on matters that provoke comparatively little public interest and much litigation, come later.

Most Americans misunderstand the executive actions taken by the president and his various agencies - which are generally treated as having the force of law - as some sort of imperial, instantaneous process. This is incorrect.

Some consequential changes really do require only the stroke of the presidential pen. Mr Trump had channelled money for border-wall construction through a simple proclamation of a national emergency - something that Mr Biden was able to end with little fuss. He was also easily able to cancel guidance urging prosecutors to aggressively go after those illegally immigrating across the Mexican border. But other changes, like undoing the nearly 100 environmental deregulations of the Trump era, are much more arduous.

That's because of the Administrative Procedure Act (APA), the most important act that Americans have never heard of. It requires a rigid process for issuing new rules. A federal agency must ordinarily release drafts of its proposed rule (grounded in the legal authority given by Congress), allow the public a period to comment and then amend it accordingly. Separate requirements mean that regulations must be accompanied by cost-benefits analyses, which can span hundreds of pages of economic and epidemiological modelling, to justify them.

Courts scrutinise these administrative actions and costings when new rules are challenged - as they often are. Improper accounting or shoddy adherence to the APA are easy ways to get them thrown out in court, which requires the entire process to restart from scratch. Litigation can stretch for years. But once a rule survives judicial scrutiny, undoing or revising it later requires another go-around.

It will help Mr Biden that the Trump administration was not very adept at administrative law. A tracker by the Institute for Policy Integrity, a think-tank housed at New York University law school, found that 80% of lawsuits against the Trump administration’s regulatory changes were successful. Under a typical administration, that number is only 30%.

The process of de-Trumpification may instill some lessons on the limits of relying on transient executive action alone. Or risk Ctrl+Z.


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