Dismantling Trump policy with the stroke of a pen

When President Joe Biden took his seat behind the Resolute desk hours after his inauguration Jan. 20, he wasted no time in dismantling key pieces of the Trump administration’s policy with 17 executive orders, proclamations, and memorandums. Some laid out the federal government’s response to the COVID-19 pandemic, halted construction of the wall on the U.S.-Mexico border, ended the so-called “Muslim travel ban,” extended a moratorium on evictions during the pandemic, recommitted the United States to the Paris climate accords, and revoked construction permits for the Keystone XL pipeline.

One executive order called for an interpretation of anti-discrimination law that includes gender identity or sexual orientation as protected classes. Alliance Defending Freedom (ADF) legal counsel Christiana Holcomb said this move “[guts] legal protections for women by denying female athletes fair competition in sports, ignoring women’s unique health needs, and forcing vulnerable girls to share intimate spaces with men who identify as female.”

Heritage Foundation President Kay Coles James said the Biden administration’s actions “already signaled that it will take unilateral steps that usurp Congress’ power with divisive policies.”

The flurry of first-day executive orders was unusual, but as presidents have come to rely on the use of executive action, their legacies have grown both more controversial and more fleeting. Biden’s first few days in office don’t show any sign he’ll break with the trend: He continued signing dozens of executive orders during his first few days in office, including orders requiring masks for interstate transportation and repealing a ban on transgender military service.

Throughout the four years of his presidency, Trump issued 220 orders. President Barack Obama issued 276 over eight years. Generally, modern presidents’ executive order count has stayed in the low hundreds (not including presidential memorandums). Some presidents used many more: Theodore Roosevelt issued a whopping 1,081 EOs, and Franklin D. Roosevelt outstripped everyone by issuing 3,728 EOs during his 12 years in office.

Ryan Burge, an assistant professor of political science at Eastern Illinois University, said most presidents historically used executive orders for inconsequential, bureaucratic processes. But historians and legal experts have recognized some orders as an overreach of executive power: FDR’s executive order for the internment of Japanese Americans during World War II (which Congress later backed) stands out. More recently, an Obama executive order that created the Deferred Action for Childhood Arrivals (DACA) and Trump’s so-called Muslim travel ban both faced criticism and court challenges.

“Congress has ground to a halt in their ability to get stuff done.”

The increase of controversial and consequential executive orders has coincided with the decline of Congress’ effectiveness. “Congress has ground to a halt in their ability to get stuff done,” Burge said. “Executive orders are a way to do that governing that goes around Congress.”

Mark Caleb Smith, director of the Center for Political Studies at Cedarville University, added another reason for Congress’ lack of action: “If you’re really interested in getting reelected, then letting the president take the heat for things makes sense.”

But the result may be that a president’s legacy shrinks in as little as four years. “Obama’s enduring legacy is going to be Obamacare—that’s how history is going to remember his policy agenda—because that was passed by Congress,” Burge said.

Similarly, the Tax Cuts and Jobs Act is likely to be one of the most enduring aspects of the Trump presidency. Many other policy accomplishments can go away in a single signing ceremony. “It’s easy to undo an executive order,” Smith said. “It just takes the stroke of a pen.”

—This story appears in the Feb. 13, 2021, issue under the headline “With the stroke of a pen.”