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Dec. 15, 2020

The Executive Order and the 2020 Presidential Transition

By Franklin Chou

Nov. 4 marked the beginning of the end of Donald Trump’s presidency. But the outgoing President still has 77 days in the transition period from Election Day until Inauguration Day. That transition period can be especially critical where the outgoing President’s successor belongs to the opposing party, in part because, until noon Eastern time, Jan. 20, Donald Trump remains President of the United States, with all the powers inherent to that office. Even as the outgoing president’s political capital wanes, President Trump retains a powerful tool in his arsenal that can secure the effects of his policies or frustrate the actions of his successor.

This article focuses on that power — the Executive Order (“EO”). An EO is a directive from the president that carries the force of law but is not subject to the Congressional law-making process. EOs are signed and published unilaterally by the president and have far-reaching effects on almost every conceivable policy issue. For example, some of the EOs signed and published by President Trump during his term have influenced:

  1. Agency rulemaking for the 456 federal agencies operating under the aegis of the Executive Branch (see, e.g., Exec. Order No. 13771, 82 Fed. Reg. 9339 (2017): “[I]t is important that for every one new regulation issued, at least two prior regulations be identified for elimination . . . .”);
  2. Foreign policy (see, e.g., Exec. Order No. 13873, 84 Fed. Reg. 22689 (2019), authorizing the Commerce Secretary to regulate the acquisition and use of information and communications technology and services from any “foreign adversary”);
  3. Housing (see, e.g., Exec. Order No. 13945, 85 Fed. Reg. 49935 (2020), directing the Secretary of Health and Human Services and the Director of CDC to “consider whether any measures temporarily halting residential evictions of any tenants for failure to pay rent are reasonably necessary to prevent the further spread of COVID-19 . . . .”);
  4. Immigration (see, e.g., Exec. Order No. 13769, 82 Fed. Reg. 8977 (2017), prohibiting, for at least 90 days, the entry of individuals into the United States from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen but excluding those with diplomatic visas); and
  5. Public health (see, e.g., Exec. Order No. 13765, 82 Fed. Reg. 8351 (2017), stating President Trump’s intention “to seek the prompt repeal of the Patient Protection and Affordable Care Act” and directing the Secretary of Health and Human Services and heads of other U.S. executive departments “to waive, defer, grant exemptions or delay implementation any requirements of the act that would place fiscal burdens on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications”).

Having signed 24 EOs in his first 100 days in office — more than President Barack Obama’s 19; President George W. Bush’s 12; and President Bill Clinton’s 13 — President Trump is no stranger to the power of EOs.

Historically, the transition period has been notable for the flurry of EOs issued by the outgoing president. For example, President Obama issued 17 EOs during the 73 days of his outgoing transition period (Nov. 8, 2016–Jan. 20, 2017) up from an average of seven EOs per 73 days. President George W. Bush issued 11 EOs during the 77 days of his outgoing transition period (Nov. 4, 2008–Jan. 20, 2009) up from an average of 7.6 EOs per 77 days.

In addition to the unilateral nature of EO implementation, once signed, EOs can be difficult to overturn, leaving President-Elect Joe Biden limited options for replacing the EOs of his predecessor. An EO can only be overridden if:

  1. it is adjudged unconstitutional (see, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), striking down an EO claiming to allow the President to seize private property on the grounds that neither Congress nor the Constitution had granted such authority);
  2. it is invalidated by an act of Congress. This is extraordinarily rare, not only because of the complexity of Congressional lawmaking but also because if Congress makes changes to the EO with which the president disagrees, Congress can expect to face the presidential veto. A veto can only be overridden by a super majority (two-thirds) vote in both the House and Senate.; or
  3. it is overturned by another EO (see, e.g., Exec. Order No. 13497, 74 Fed. Reg. 6113 (2009), issued by President Obama, revoking Executive Orders 13258 and 12866, both issued by his predecessor President Bush).

The first option is unlikely the path the president-elect pursues due to the uncertain nature of litigation. At best, it would be subjecting important policy decisions to the judiciary’s opaque bureaucracy which may assign the case to judges unfriendly to the president-elect’s political agenda. At worst, it could be construed as an abdication of the responsibility of the executive to proactively set policy. While losing a few high-profile court cases presents an outsize political risk at any time during a President’s term, this is especially true in the first 100 days post-transition where scrutiny — from the media, from the opposition and from the public — is at an all-time high. Compounded further by a conservative majority Supreme Court and a federal bench deep with the outgoing president’s appointees (President Trump appointed over 25% of current federal appeals court positions), enlisting the help of the judiciary is likely off the table.

The second option is also likely not feasible for many of the same reasons. The legislative process is time-consuming and uncertain. With 535 voting members, lawmaking has even more moving parts than litigation. Although legislation often has more staying power than EOs, pursuing repeal of an EO by enlisting the help of Congress is fraught with peril. It could lead the incoming President on divergent policy paths, some tangentially related and some entirely unrelated, to the goal of overturning a predecessor’s EO, exhausting political capital with no guarantee of success. Compounded by the still open question of Senate majority control pending the Georgia run-off elections, it is unlikely that President-Elect Joe Biden would seek repeal of existing EOs pursuing this route.

This leaves Biden with one tenable avenue to repeal the inevitable flurry of EOs President Trump will issue on his way out of the White House: issuing his own EOs. The power of the EO cuts both ways. Since EOs are issued unilaterally they can also be revoked unilaterally: a fact that incoming executives of the opposition have often availed themselves (see e.g., Exec. Order No. 13206, 66 Fed. Reg. 18397 (2001), signed by President Bush revoking an EO restricting export controls on certain U.S. goods, technology and technical documents signed by President Clinton) and Exec. Order No. 13505, 74 Fed. Reg. 10667 (2009), signed by President Obama revoking an EO banning stem cell research signed by President Bush). With Inauguration Day fast approaching, the outgoing president will, as is tradition, increase the quantity of EOs signed. And on Jan. 20, incoming President Joe Biden will likely seek to repeal many by issuing his own EOs.