Caricatured by Republicans as “Sleepy Joe,” the new president has started his term with an impressive sprint, issuing a record number of executive orders. In his first 10 days in office, Biden has signed 24 executive orders. That’s eight more than the combined total the last five presidents signed in the same period (Donald Trump signed six, Barack Obama five, George W. Bush two, Bill Clinton two and George H.W. Bush one).
To be sure, as Trump got used to the presidency, he became a confident and prolific user of executive orders, signing 208 (as against Obama’s 276 executive orders in a presidency that was twice as long as Trump’s). Many of Biden’s executive orders are directly aimed at rescinding Trump’s commands. “In office, though, Mr. Biden has been moving at a blistering pace,” The Economist notes. “Within hours of being sworn in, he had recommitted America to the Paris climate accord; restored ties with the World Health Organization; lifted a ban on travelers to America from several Muslim-majority countries; promised to protect from deportation ‘dreamers’, brought to America illegally as children; extended temporary freezes on household evictions and federal student-loan payments; mandated mask-wearing in airports, public transport and in federal buildings; and halted construction of the US-Mexico border wall.”
The New York Times finds this “blistering pace” much too fast. In an editorial, the newspaper enjoined, “Ease Up on the Executive Action, Joe.” According to the Times, executive orders are a blunt and limited instrument, lacking the force and greater permanency of congressionally passed laws. After all, it would just take another Republican president to put back in place Trump measures Biden had overturned.
“A polarized, narrowly divided Congress may offer Mr. Biden little choice but to employ executive actions or see his entire agenda held hostage,” the Times editors admitted.
These directives, however, are a flawed substitute for legislation. They are intended to provide guidance to the government and need to work within the discretion granted the executive by existing law or the Constitution. They do not create new law—though executive orders carry the force of law—and they are not meant to serve as an end run around the will of Congress. By design, such actions are more limited in what they can achieve than legislation, and presidents who overreach invite intervention by the courts.
The Times editorial board even has the gall to use the Dreamers, undocumented immigrants brought to America as children, as a weapon in its polemical onslaught against executive orders. The newspaper frets about Dreamers’ living in “a nightmarish limbo” due to the whiplash of changing executive orders from Obama to Trump to Biden. But this creates an equivalence between those trying to protect the Dreamers and those trying to deport them. In truth, the “nightmare limbo” was created by two forces: Republicans in Congress, unwilling to enact immigration reforms, and Trump, trying to leverage the Dreamers in order to coerce funding for his border wall. Leaving out this fact serves as an apologia for the GOP.
This editorial is a prime example of the Times’ vulnerability to myopic Mugwumpism, a tendency to focus on small-bore political process while ignoring the actual power dynamics that drive politics. The Mugwumps—late-19th century reformers—fixated on civil service reform as a panacea for all that ailed America, ignoring battles over Reconstruction and the civil rights of formerly enslaved people.
In a like manner, a persnickety focus on the limits of executive orders makes sense only if one ignores the much larger battles around American democracy. Earlier this month, Donald Trump egged on a mob to attack Congress in order to thwart the process of even installing Biden as president. Trump and many other Republican elected officials did everything in their power to cast doubt on the legitimacy of Biden’s win. To this day, some, like South Dakota Governor Kristi Noem, refuse to admit that Biden won a free and fair election.
In the context of having his legitimacy called into question, it is crucial for Biden to assert his authority as quickly as possible so that the nation can see he is in fact the president. Biden took a number of decisive early moves to make visible his executive authority, notably firing the National Labor Relations Board’s general counsel, Peter Robb, a Trump-era holdover who refused a request to resign. Undoing some of Trump’s worst executive orders was also a way for Biden to make clear that he is president.
Biden’s use of executive orders helps bolster democracy in several crucial ways. First, it shows that elections have consequences—and that the 81 million Americans who helped Biden win the White House deserve to have their views imprinted on government. Secondly, going after Trump’s executive orders quickly and with the same process Trump used helps show how transitory Trump’s legacy is. Thirdly, the orders make Biden’s authority visible in a way that defies Republican efforts to delegitimize his presidency.
The one part of the Times editorial that has value is the argument that Biden should in the future work with Congress. But executive orders and congressional action are not mutually exclusive. Congress works slowly and will take time not just passing laws but also reasserting the oversight role that Trump thwarted. There’s nothing incompatible about an early push on executive orders to clean up Trump’s mess and fostering a healthier relationship with Congress.
But working with Congress doesn’t necessarily mean the bipartisan outreach that the Times recommends. Biden and congressional Democrats show every sign of pushing ahead with an ambitious stimulus agenda, even if it means stepping on the toes of Republicans. As Politico reports, “Democrats are vowing to move forward on a new stimulus package as soon as next week, with or without Republicans. Though Chuck Schumer and Nancy Pelosi have not officially said they plan to pursue a party-line approach through budget reconciliation, many Democrats now believe that’s the only way forward.”
Reconciliation won’t give the Democrats everything they want. Any efforts at legislating outside the budget will require either overturning the filibuster or getting the support of 10 or more Senate Republicans. Both paths are uncertain and perhaps foredoomed.
Still, the early turn to reconciliation shows that congressional Democrats aren’t being sidelined. They are ready to work with Biden. On some significant issues, like the second impeachment of Donald Trump, congressional Democrats have forged a path independent of the president.
Biden’s executive orders aren’t a threat to democracy. Rather, they spring from an energized Democratic Party that is helping to revitalize American democracy and make it functional again.