At the start of each new presidential administration, particularly when a new party gains control of the White House, presidents use executive orders, and other forms of executive action including presidential memoranda and presidential proclamations, to implement many of their campaign promises. Executive orders are formal instructions from the president to the executive branch that have the force of law unless they are retracted by the president or a successor, overturned by Congress, or ruled unconstitutional by the courts. Unlike legislation passed by Congress, which requires the consent of both chambers of Congress and the president to become law, executive orders can be issued unilaterally by the president. In our current political climate, which is largely defined by political polarization and negative partisanship, presidents are likely to face obstruction from their political rivals in Congress, who are electorally incentivized to prevent the president from achieving their goals. For this reason, recent presidents have often come to rely on executive action opposed to the formal legislative process in Congress to pursue their policy goals.
Since taking office in January, President Biden has issued dozens of executive orders pertaining to several issues including COVID-19, immigration, climate change, and systemic racism and inequality. Among these orders, Biden has required masks be worn on federal properties, broadened nondiscrimination protections for members of the LGBTQ community, required that undocumented immigrants be counted in the census, and created the COVID-19 Health Equity Task Force, which has been tasked with ensuring the government’s response to the coronavirus is equitable and does not exacerbate existing social inequalities.
During his first few months in office, President Biden has also used executive action to overturn or rescind several policies put in place by the Trump administration. For example, he has issued an executive order announcing that the United States would rejoin the Paris Climate Agreement, which is an international accord to address the existential threat of climate change. President Trump had previously withdrawn that United States from the Paris Climate Agreement. Similarly, Biden has issued an executive order to reverse the ban on transgender individuals serving in the military that had been put in place by Trump. Biden is certainly not the first president to use executive action to target the policies put in place by his immediate predecessor. This is actually a common tactic employed by new presidents, especially if they were preceded by a president from the opposing party. In fact, one of the main risks of using unilateral action, instead of the formal legislative process, to create policy is that executive actions can be less durable than laws passed by Congress.
There are limits to what can be accomplished through the use of executive action. However, since the Constitution vests the president with “the executive power” and provides the president with the vague, but broad authority to “take care that the laws be faithfully executed,” presidents have often tested these limits. For example, President Obama used executive authority to enact Deferred Action for Childhood Arrivals (DACA) and President Trump cited national security concerns when he issued an executive order to ban citizens of several predominantly Muslim-majority countries from entering the United States, which is another policy that President Biden has reversed since taking office. Opponents of these policies argue that they are examples of presidential overreach and are policies that would not have been implemented by Congress’s formal legislative process.
So far, President Biden has been reluctant to address the issue of student debt through unilateral executive action. Many progressive members of the Democratic Party, including Senator Warren and Senate Majority Leader Schumer, have requested that Biden use executive action to eliminate the first $50,000 in student loan debt for each qualified borrower. However, Biden has publicly stated that his preference would be to only eliminate up to $10,000 dollars in student loan debt for each qualified borrower and that the prefers to do this through Congress’s formal legislative process. Given the Democratic Party’s small majorities in both chambers of Congress, student loan forgiveness seems unlikely to become policy unless Biden changes is mind and decides to address the issue through executive action. This political reality is a good example of why we should expect future presidents to continue the trend of implementing policy through executive action when they face obstruction in Congress.
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Matthew J. Geras, Assistant Professor of Political Science, holds a Ph.D in Political Science from the University of Oklahoma, where he spent five years as a graduate fellow at the Carl Albert Congressional Research and Studies Center.