February 6, 2021

Storm Over Biden’s 42 Executive Orders: Tempest in a Teapot

by Harold Gershowitz

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So, some people are feigning varying degrees of horror over President Biden’s 42 executive orders. Some readers have written to me demanding to know why I’m not writing about Biden’s propensity to rule by decree. Some have asked why we have a Congress if the President is just going to issue executive orders to accomplish whatever he wants to get done.

Well, hold on a second. Number one (as President Biden likes to say), the President really can’t accomplish whatever he wants to achieve with executive orders. Far from it.

While the President can accomplish quite a bit with executive orders, there are limitations to what he can impose this way. And, number two, he can’t make new law with executive orders. However, he can direct the executive branch to authorize, emphasize, de-emphasize, or enforce that which is within the executive branch’s constitutionally prescribed responsibilities. And yes, Presidents can be, and have been, slapped down by the judiciary when executive orders go beyond the authority assigned to the executive branch by the Constitution.

The first U.S. president to issue an executive order was, well, our first president, and presidents have, more or less, been issuing them ever since. So far, 15,790 executive orders have been collectively issued by our forty-six presidents. That comes out to an average of 342 executive orders per President. Averages are, of course, misleading. George Washington issued eight executive orders, while Franklin Roosevelt issued 3721 of them. Theodore Roosevelt, Woodrow Wilson, and Calvin Coolidge each issued more than a thousand. John Adams, James Madison, and James Monroe each issued one apiece. William Henry Harrison was the only President who didn’t issue any executive orders. Then again, poor Tippecanoe didn’t hang around long enough to do much of anything, having died within a month of his inauguration.

This is not to suggest that executive orders are always routine and inconsequential. Most executive orders have dealt with routine administrative matters. Others, such as FDR’s executive order directing the internment of Japanese Americans in the aftermath of Pearl Harbor was devastating to over 100,000 Americans, who, as it turns out, had committed no offense and were not a threat to the nation. On the other hand, Abraham Lincoln’s Emancipation Proclamation of 1863, and Harry Truman’s desegregation of the armed forces by executive order in 1948, were monumental.

So, let’s focus on President Biden’s 42 Executive Orders

Fifteen of them simply reversed executive orders issued by his predecessor, and, as far as I can determine, none of those seemed to offend anyone complaining about President Biden’s executive orders. Reversing executive orders of a prior administration is relatively standard, but some reversals can also be quite consequential.

President Biden’s rescinding federal permits for the XL Keystone Pipeline is a significant policy reversal from President Trump’s authorization of the project. President Biden has also stopped any further construction of the border wall between the United States and Mexico. He has rescinded the ban on travel from mostly Muslim countries, and he has imposed a mask mandate on federal property. President Biden has also ramped up vaccination supplies and is requiring international travelers to prove negative Covid-19 tests before traveling into the United States. More on Keystone and the border wall cancelation a bit further down in this essay.

Another nineteen of President Biden’s executive orders were issued in response to the Covid-19 pandemic. There is not space in this essay to go through each of the Covid-19 executive orders. They are logical, and to this writer, non-controversial although some readers will no doubt object to America rejoining the World Health Organization.

Cancelation of the XL Keystone Pipeline and the cessation of further border wall construction are, to many, the two most controversial of President Biden’s reversals of President Trump’s executive orders.

Cancelation of the XL Keystone Pipeline has been the most controversial of President Biden’s executive orders. It should not have been a surprise to anyone. If the United States is really committed to reducing the nation’s carbon footprint, doubling the volume of this high-carbon oil (actually Bitumen) from Alberta Canada’s tar-sands oil is simply inconsistent with that policy. While there are considerable misunderstandings and misinformation about the project, its cancelation merits some necessary clarification.

First, there currently is a Keystone Pipeline in operation, which transports to the United States about 500,000 barrels of Canadian oil from the Alberta tar-sands extraction fields. The XL Keystone Pipeline was to be an adjunct to the existing Keystone Pipeline and would have doubled the volume of oil from the Alberta tar sands into the United States.  Four sections of the Keystone pipeline have been transporting oil for years to refineries in the Midwest. The XL Keystone extension would have simply made more high carbon tar-sands oil available to gulf coast refineries. We cannot claim to have a serious commitment to climate change and to reducing our carbon footprint and simultaneously double the volume of high carbon oil from Canada’s tar sands fields.

Also, the reports of 10,000 to 11,000 lost jobs due to XL Keystone’s cancelation are somewhat misleading. The cancelation will cost about 1,000 current jobs, and as is generally true with infrastructure jobs the rest, about 10,000 jobs, were to be filled temporarily as the pipeline progressed southward. Few, if any, of these positions would have been permanent. This is not to minimize the importance of these jobs, but merely to clarify that they would have been of relatively short duration.

Cessation of border wall construction warrants some elaboration as well. The Office of the Inspector General of the Department of Homeland Security has been highly critical of U.S. Customs and Border Patrol (USCBP) for inadequately assessing high-tech surveillance as alternatives to constructing a barrier wall. Existing high-tech surveillance technology can track, day or night, intruders making their way to the border or attempting to cross the border.

The barrier wall project shrank over the years from the 2,000-mile end-to-end wall promised in 2016 to just 450 miles of it actually being built, mainly along the southern border of California and Arizona, and some construction in Texas. Nearly all of the new wall construction enhanced existing barriers. According to the latest report from U.S. Customs and Border Patrol, just 47 miles of previously unprotected border are being blocked by the new barrier wall. 

So, when all is said and done, 34 of President Biden’s 42 executive orders either rescind some of President Trump’s executive orders as discussed above or deal with Covid-19, the greatest public health emergency the country has faced in over 100 years.

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