TheEconomistJanuary 30th 2021 191B
uilding a presidential legacy out of
executive actions can be like building
castles out of sand—both risk being wiped
out by the changing tides. Donald Trump
spent much of his presidency playing in
the sand. His lasting legislative accom-
plishments—a conventionally Republican
tax cut, chiefly, and a worthwhile, albeit
modest, sentencing-reform law—are few
in number and hardly embody his hard-
nosed populism. The most sensational
bouts of Trumpism came instead through
executive fiat: the order to build a border
wall with Mexico, a ban on transgender
Americans serving in the military, and the
steady campaign to loosen pollution con-
trols. A new administration means new
rules. President Joe Biden has already re-
scinded many of those actions. Given his
current pace and the vigour of his appoin-
tees, he may even achieve something like
total de-Trumpification of federal policy.
The executive orders have been coming
at an extraordinary clip. The first tranche
were breezy values-signalling measures on
high-profile controversies. On his first dayon the job, Mr Biden posed behind the Res-
olute desk of the Oval Office beside a stack
of 17 immediate actions—undoing his pre-
decessor’s decisions on immigration (like
banning entry from several Muslim-major-
ity countries), climate change (by leaving
the Paris climate agreement) and covid-
knownothingism (by not mandating
mask-wearing on federal property). The
deeper-cleaning orders, on matters that
provoke comparatively little public inter-
est and much litigation, come later.
Most Americans misunderstand the ex-
ecutive actions taken by the president andhis various agencies—which are generally
treated as having the force of law—as some
sort of imperial, instantaneous process.
This is incorrect. The bounds of executive
power are neither nebulous nor limitless,
but set by Congress. In some arenas, such
as regulating pollution or immigration,
Congress has delegated considerable dis-
cretion to the executive branch. That is why
they are the subject of vacillation from one
administration to the next. In other areas,
like elementary and secondary schooling,
federal authority is more circumscribed.
Some consequential changes really do
require only the stroke of the presidential
pen. Mr Trump had channelled money for
border-wall construction through a simple
proclamation of a national emergency—
something that Mr Biden was able to end
with little fuss. He was also easily able to
cancel guidance urging prosecutors to ag-
gressively go after those illegally immigrat-
ing across the Mexican border. But other
changes, like undoing the nearly 100 envi-
ronmental deregulations of the Trump era,
are much more arduous.
That is because of the Administrative
Procedure Act (apa), the most important
act that Americans have never heard of. It
requires a rigid process for issuing new
rules. A federal agency must ordinarily re-
lease drafts of its proposed rule (grounded
in the legal authority given by Congress),
allow the public a period to comment and
then amend it accordingly. Separate re-
quirements mean that regulations must beThe Biden administrationCtrl+Z
WASHINGTON, DC
What Joe Biden’s flurry of executive orders reveals about the possibilities,
and limits, of presidential powerUnited States
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