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How Biden can end executive order ping-pong

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President Biden is expected to issue a series of executive orders soon after assuming office. Many of them will overturn Trump presidency executive orders, such as the declaration removing the U.S. from the Paris climate agreement.  

There is nothing wrong with presidents issuing executive orders to manage the operations of the federal government, clarify legislative intent for federal departments and agencies, and enforce the law. What is problematic is when executive orders substitute for legislating, as a president unilaterally changes existing policy paths or even creates new policies.  

Biden reportedly is considering student-loan forgiveness as one of an array of policy actions during his first 100 days. Such a unilateral executive action to forgive as much as $50,000 of debt for individuals would have huge policy implications and consequences for the federal budget. It would also invite legal challenges, putting into limbo the policy benefits. With such significant issues at play, it is important to ask if such actions instead should be fully vetted through the regular lawmaking process. 

Another consequence of presidents taking action through executive orders is the resulting quadrennial back-and-forth on policy, often largely for the purpose of pleasing a constituency with a fast win. What one party’s administration creates, an opposing one quickly eliminates. 

For instance, Biden reportedly intends to roll back the Mexico City Policy, which prohibits the use of federal funds for international health and family planning agencies that perform abortions or provide abortion information or referrals. Prior to the Reagan administration, a bipartisan policy consensus existed to support international population control through financial assistance for international family planning programs. 

President Reagan instituted the policy by executive memorandum in 1984. Although Reagan claimed that his decision had some basis of authority granted by Congress, what he did went far beyond the specifics of any legislative grants.

Since the Reagan era, the consensus approach has been replaced by executive order ping-pong, with the policy being reinstated or rescinded depending on the political affiliation of the new president.

These constant shifts in policy are the result of presidents taking direct action unconstrained by other policymaking forces that likely would have facilitated greater policy continuity. The lack of policy continuity, of course, has had consequences for the intended beneficiaries of U.S. aid programs. It has also caused much confusion for international aid organizations that have been spun back and forth over shifting policies from one administration to the next.  

Biden will likely issue many executive orders, continuing the modern presidential norm of governing by unilateral actions. President Trump averaged 51 executive orders per year in office, the highest of any president since Jimmy Carter. Thus, President Biden will likely act quickly with “stroke of the pen” actions — many of which will likely be overturned by a future Republican president. 

It is hard to imagine that this back-and-forth manner of policymaking will change, as presidents like to use executive orders to take quick action to showcase that their elections resulted in meaningful and nearly immediate change. And no president who profoundly disagrees with a predecessor’s unilateral actions will want to let them stand.

The only plausible solution would be for the new president to start a negotiating process with Congress to develop consensus-based legislative solutions in these policy areas. But that’s an unlikely scenario as long as the political parties remain intensely polarized and little political incentive exists for compromise solutions.  

Jeffrey Crouch is assistant professor of political science at American University. Mitchel A. Sollenberger is a professor of political science at the University of Michigan-Dearborn. Mark J. Rozell is dean of the Schar School of Policy and Government at George Mason University. They are co-authors of the recently published book “The Unitary Executive: A Danger to Constitutional Government” (University Press of Kansas).

Tags 2020 presidential election Biden Donald Trump Executive Order executive orders Jimmy Carter Mexico City Policy President of the United States Ronald Reagan

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