Undoing Trump will take more than executive orders

Undoing Trump will take more than executive orders
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Joe BidenJoe Biden Pence said he's 'proud' Congress certified Biden's win on Jan. 6 Americans put the most trust in their doctor for COVID-19 information: poll US to give Afghanistan 3M doses of J&J vaccine MORE has a plethora of pens as he signs multiple executive orders in the opening days of his presidency, orders that likely will be a mainstay of his administration in the months ahead. He should order those pens in bulk.

Biden is rejoining the Paris Climate Accord and the World Health Organization, getting more assistance to struggling families, terminating the ban on allowing Muslims from certain countries into the U.S., mandating a $15 minimum wage for federal workers and the wearing of masks on federal property during the pandemic, protecting some imperiled immigrants, freezing any spending on a wall along the Mexican border and initiating more COVID-19 protections.

Most of these are undoing executive actions taken by President TrumpDonald Trump Pence said he's 'proud' Congress certified Biden's win on Jan. 6 Americans put the most trust in their doctor for COVID-19 information: poll OVERNIGHT DEFENSE: Biden administration to evacuate Afghans who helped US l Serious differences remain between US and Iran on nuclear talks l US, Turkish officials meet to discuss security plans for Afghan airport MORE.


Biden also wants to cashier most all Trump appointees; in the final months, Trump duplicitously moved some political operatives into civil service protected jobs. The most notorious is Michael Ellis, an aide to the discredited former House Intelligence chair Devin NunesDevin Gerald NunesTech privacy practices under scrutiny after DOJ subpoenas GOP's Stefanik defends Trump DOJ secret subpoenas CNN reporter's phone and email records secretly obtained by Trump administration: report MORE, who was installed as the top lawyer at the super-sensitive National Security Agency over the objections of the agency's director. There are others. It may be possible to fire some by executive action; most of the others might be transferred to a less sensitive post. Leon Panetta, the Democrats' most prominent national security expert, suggests finding a place for Ellis in Alaska.

Over the longer run, however, the new administration — especially when agencies rewrite or draft new rules — may run into a judicial brick wall. Trump did with some of his early executive orders, which were carelessly crafted, failed to go through proper procedures, and often overreached.

The Biden problems likely will be more ideological.

Republicans successfully manipulated politics to forge a solidly pro-Republican High Court. Biden's nomination of Merrick GarlandMerrick Garland DOJ charges first Capitol rioters suspected of attacking media The Hill's Morning Report - Presented by Facebook - Senators, White House to meet on potential infrastructure deal Biden emphasizes investment in police, communities to combat crime MORE as Attorney General is a painful reminder that he was denied a seat on the High Court in 2016 when Senate Republicans for nine months denied a vote. Subsequently, Trump filled that slot and one other — and then the Senate pushed through the nomination of Amy Coney BarrettAmy Coney BarrettSupreme Court's Cedar Point property rights decision protects both sides Supreme Court strikes down FHFA director's firing protection Overnight Health Care: Takeaways on the Supreme Court's Obamacare decision | COVID-19 cost 5.5 million years of American life | Biden administration investing billions in antiviral pills for COVID-19 MORE in mere weeks.

The Republican majority justices on the Supreme Court usually embrace business interests on regulatory matters.


Some last-minute Trump actions may be hard to unwind, like letting out of contracts for oil and gas drilling or undoing the appointment of political hacks to various boards, most having little to do with policy.

The Biden transition team has had top lawyers working around the clock to draw up a list of executive actions and regulatory issues. They are carefully evaluating legal risk assessments given the conservative coloration of the judiciary. With the Trump team's general refusal to engage in the customary cooperation during the transition, the problems may be deeper than expected.

The most important and controversial areas will be the environment, workers’ rights, financial regulation and immigration. These all are divisive issues with Republicans, and many affect powerful and deep-pocketed interests.

Even though candidate Biden talked often about taking executive actions and his chief of staff distributed a memo last weekend on the plans, the president spent 36 years in the Senate, and his instinct is legislative.

If legislative measures fail or are considered too tepid by the Democratic left, pressure will mount on the president to take more sweeping executive branch actions.

All matters, however, will come up against a solidly right-wing High Court. During the Obama years, Justices Samuel AlitoSamuel AlitoSupreme Court strikes down FHFA director's firing protection Five takeaways on the Supreme Court's Obamacare decision The Hill's 12:30 Report: Supreme Court unveils two major opinions MORE and Clarence ThomasClarence ThomasSupreme Court strikes down FHFA director's firing protection Supreme Court backs cheerleader over school in free speech case Biden's bad run: Is he doing worse in the courts than Trump? MORE were disdainful of the president and most of his policies; they unsuccessfully sought to throw out the Affordable Health Care Act. Chief Justice John Roberts strikes a more measured approach — he was the key vote for the ACA —though he usually is a reliably pro-business vote.

The three Trump-appointed justices generally are in the Alito-Thomas mold. Neil GorsuchNeil GorsuchSupreme Court strikes down FHFA director's firing protection Student athletes or independent contractors? Supreme Court moves the goalposts on the NCAA The Hill's Morning Report - Presented by Facebook - Democrats await Manchin decision on voting rights bill MORE has been a sharp critic of the so-called "Chevron deference," which gives regulatory flexibility to interpret and enforce laws in this complex economy and not require narrow adherence to strict statutory language.

The newest Justice, Amy Barrett, hasn't compiled much of a record on regulatory issues during a short stint on an appeals court — but her role model is the late Justice Antonin Scalia, for whom she clerked years ago, which would suggest she'll usually side with business interests.

When Trump nominated Brett KavanaughBrett Michael KavanaughProtect our courts: Investigate Jan. 6 Supreme Court strikes down FHFA director's firing protection Student athletes or independent contractors? Supreme Court moves the goalposts on the NCAA MORE to the High court, the White House put out a memo noting the scores of times Kavanaugh, as an appeals court judge, voted against regulations dealing with clean air and water and consumer protections. Before becoming judge, he was very active in “movement conservative” Republican circles.

This administration also will be tested on efforts to expand voting rights and curb voting suppression; these have become partisan issues, as Democrats try to expand the franchise.

Biden should expect everything to be challenged in court — which means everything this administration attempts will go before judges appointed by Trump and run through the Senate by a happily compliant Mitch McConnellAddison (Mitch) Mitchell McConnellRevs. Jesse Jackson, William Barber arrested in protest urging Manchin to nix filibuster On The Money: Biden announces bipartisan deal on infrastructure, but Democratic leaders hold out for more McConnell slams Biden for already 'caving' to left on infrastructure deal MORE (R-Ky.).

Al Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for the Wall Street Journal. For almost a quarter century he wrote a column on politics for The Wall Street Journal, then The International New York Times and Bloomberg View. He hosts 2020 Politics War Room with James Carville. Follow him on Twitter @AlHuntDC.