Critics of the administration have wasted no time in complaining about various presidential actions that have been issued, with several legal challenges already in process. Even friendly sources (notably the New York Times) have begun to question the scope and number of these actions.
The White House response has been along the lines that many of the actions were required by the COVID pandemic and/or necessary to rescind orders that the prior administration shouldn’t have issued in the first place. Also, efforts to get legislation enacted are promised, starting with the president’s proposed COVID relief bill (American Rescue Plan) – so Congress will hardly be shut out of the action. Biden faces scrutiny over reliance on executive orders, Aamer Madhani (AP), News Journal, 1/30/21.
As a starting point for review (over the next several weeks), we’ve created a chronological access list that can be navigated more readily than the White House website (which is being archived in reverse chronological order and lacks reference numbers).
This week’s entry will review the four actions in the “General” category and provide the access list as an appendix. Readers who are so inclined can scroll through this list and instantly access the text of items that interest them.
1. A National Day of Unity - This proclamation might be likened to an executive summary of the Inauguration Address. The election has been held and democracy prevailed. Now Americans must unite to meet a host of crises:
•A once-in-a-century deadly pandemic; with unity, we can save lives and beat this pandemic.
•A historic and deepening economic crisis; we can build our economy back better and include everyone.
•Call for racial justice some 400 years in the making; we can right wrongs and root out systemic racism in our country.
•A climate crisis with force and fury; we can confront the climate crisis with American jobs and ingenuity.
•The rise in political extremism and domestic terrorism – unleashed on our Capitol just days ago but brewing long before – that we must confront and defeat. We can protect our democracy by seeing each other not as adversaries but as fellow Americans.
For the world to see, with unity we can lead not just by the example of our power, but by the power of our example.
2. Regulatory freeze pending review – This memorandum to the heads of executive departments and agencies was signed by Chief of Staff Ronald Klain, but is said to represent the president’s plan for managing regulatory matters during the outset period for his administration.
The goal is to ensure that the President’s appointees or designees have the opportunity to review any new or pending rules before they go into effect. To this end, there should be an initial freeze on rule-making activity with the exception of rules that have already been published in the Federal Register (in that case, consider a 60-day stay unless the rule is routine) or where action is necessary to comply with a statutory or judicial deadline.
8. Executive order on revocation of certain executive orders concerning federal regulation - To tackle the challenges they face effectively, it is said, “executive departments and agencies (agencies) must be equipped with the flexibility to use robust regulatory action to address national priorities. This order revokes harmful policies and directives that threaten to frustrate the Federal Government’s ability to confront these problems, and empowers agencies to use appropriate regulatory tools to achieve these goals.”
Accordingly, half a dozen Trump era orders are rescinded, which (a) placed various constraints on administrative rule-making, and (b) were subject to enforcement by the Office of Management and Budget (OMB). Thus, for example, EO 13771 of Jan. 30, 2017, required abolition of at least two rules for every new rule implemented and banned overall increases in regulatory compliance costs.
12. Modernizing regulatory review - Tasked with addressing challenges such as the COVID pandemic, climate crisis and systemic racism, agencies must be empowered to act boldly and decisively in safeguarding the public interest. The administration’s oversight over regulations is vested in the Office of Information and Regulatory Affairs (OIRA), which in turn is part of the OMB. After four decades, the procedures being used are in need of a makeover.
“I therefore direct the Director of OMB, in consultation with representatives of executive departments and agencies (agencies), as appropriate and as soon as practicable, to begin a process with the goal of producing a set of recommendations for improving and modernizing regulatory review. These recommendations should provide concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations. The recommendations should also include proposals that would ensure that regulatory review serves as a tool to affirmatively promote regulations that advance these values. These recommendations should be informed by public engagement with relevant stakeholders.”
In particular, the recommendations of this study should “ensure that the review process promotes policies that reflect new developments in scientific and economic understanding, fully accounts for regulatory benefits that are difficult or impossible to quantify, and does not have harmful anti-regulatory or deregulatory effects. Also, the new procedures should “take into account the distributional consequences of regulations, including as part of any quantitative or qualitative analysis of the costs and benefits of regulations, to ensure that regulatory initiatives appropriately benefit and do not inappropriately burden disadvantaged, vulnerable, or marginalized communities.
This directive, it has been suggested, will effectively vitiate the traditional understanding that proposed regulations should be subjected to meaningful cost versus benefits review. Biden gives regulators a free and heavy hand, Mick Mulvaney (former OMB director and then chief of Staff in the Trump administration) & Joe Grogan, Wall Street Journal, 1/26/21.
Translated from OMB-speak into English, that means throw out traditional measures, use anything you can possibly find to promote the benefit side of the cost-benefit analysis, and don’t do anything that might impair new regulation or remove old rules. The message from the Biden administration is that wherever cost-benefit analyses might create an impediment to regulation, OMB should feel free to throw out the math and use whatever it can find in the annals of some fringe academic journal to justify the new rules.
For SAFE and other smaller, more focused, less costly government fans, this is not good news!
13. Executive order on ethics commitments by executive branch personnel - Every appointee in any executive agency appointed on or after 1/20/21 will be required to agree to a suite of restrictions on their activities in office and post-government employment, which are generally designed to ban participation in matters involving the interests of former associates (within the previous 2 years) or acceptance of post-government employment (within the following 2 years) that involves the use of information learned or contacts made while in government service. These restrictions would at least partially close the infamous “revolving door” between government service and the private sector.
A related point, not referred to in this order, is that shortly before leaving office President Trump had revoked an anti-lobbying executive order issued at the start of his administration that similarly was aimed at the “revolving door” problem. Trump revokes lobbying ban he signed at the beginning of his presidency, Andrew Solender, forbes.com, 1/20/21.
Perhaps this is an issue that should be addressed by permanent legislation versus executive orders.
27. Executive order on protecting the federal workforce - Career civil servants are the backbone of the Federal workforce, providing the expertise and experience necessary for the critical functioning of the Federal Government. It is US policy to (a) protect, empower, and rebuild the career federal government workforce, and (b) to encourage union organizing and collective bargaining so that the Federal Government can “serve as a model employer.”
Accordingly, several Trump-era presidential actions are revoked, including (a) the creation of a new category of high-rated civil service employees (Schedule F) that could be fired at will, and (b) requirements for transparency, accountability, and efficiency in taxpayer-funded union time use. Also, the Office of Personnel Management (OPM) shall provide a report to the President with recommendations to promote a $15/hour minimum wage for Federal employees.
#I copied 36. Executive Order on the President’s Council of Advisors on Science and Technology [Green Energy] , and found that it ran 18 pages (7,596 words). I read for a while, then started skimming and eventually gave up. Do you think there are possible legal remedies that can save us from these Executive orders? – SAFE director
Comment: Some of them may get blocked or delayed, but the only sure cure is winning elections. If we can help lay the foundation for that to happen, that’s probably the best that can be hoped for.
#Here’s what I perceive is going on. Information assurance (IA) is being redefined to muzzle right wing, basically McCarthyism in reverse. The hunt is on for extremists who were Trump supporters, while BLM and Antifa are being ignored. Federal bailouts for mismanaged blue cities, watered-down immigration enforcement, path to citizenship for 11 million already here. Not good. – SAFE director
**********Appendix: Presidential actions to date**********
1/20/21 (Inauguration Day)
1. A National Day of Unity [General]
2. Regulatory Freeze Pending Review [General]
3. Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government [Equity]
4. Proclamation on Ending Discriminatory Bans on Entry to The United States [International]
5. Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing [Covid]
6. Executive Order on Organizing and Mobilizing the United States Government to Provide a Unified and Effective Response to Combat COVID-19 and to Provide United States Leadership on Global Health and Security [Covid]
7. Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities [Immigration]
8. Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation [General]
9. Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census [Immigration]
10. Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis [Green Energy]
11. Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation [General]
12. Modernizing Regulatory Review [General]
13. Executive Order on Ethics Commitments by Executive Branch Personnel [General]
14. Proclamation on the Termination Of Emergency With Respect To The Southern Border Of The United States And Redirection Of Funds Diverted To Border Wall Construction [Immigration]
15. Reinstating Deferred Enforced Departure for Liberians [Immigration]
16. Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) [Immigration]
17. Executive Order on Promoting COVID-19 Safety in Domestic and International Travel [Covid]
18. Executive Order on Improving and Expanding Access to Care and Treatments for COVID-19 [Covid]
19. Executive Order on Ensuring a Data-Driven Response to COVID-19 and Future High-Consequence Public Health Threats [Covid]
20. Memorandum to Extend Federal Support to Governors’ Use of the National Guard to Respond to COVID-19 and to Increase Reimbursement and Other Assistance Provided to States [Covid]
21. Executive Order on a Sustainable Public Health Supply Chain [Covid]
22. Executive Order on Ensuring an Equitable Pandemic Response and Recovery [Covid]
23. Executive Order on Supporting the Reopening and Continuing Operation of Schools and Early Childhood Education Providers [Covid]
24. Executive Order on Protecting Worker Health and Safety [Covid]
25. Executive Order on Establishing the COVID-19 Pandemic Testing Board and Ensuring a Sustainable Public Health Workforce for COVID-19 and Other Biological Threats [Covid]
26. Executive Order on Economic Relief Related to the COVID-19 Pandemic [Covid]
27. Executive Order on Protecting the Federal Workforce [General]
28. Executive Order on Enabling All Qualified Americans to Serve Their Country in Uniform [Equity]
29. Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease [Covid]
30. Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers [Economy]
31. Memorandum Condemning and Combating Racism, Xenophobia, and Intolerance Against Asian Americans and Pacific Islanders in the United States [Equity]
32. Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships [Equity]
33. Executive Order on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities [Equity]
34. Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies [Equity]
35. Executive Order on Tackling the Climate Crisis at Home and Abroad [Green Energy]
36. Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking [Green Energy]
37. Executive Order on the President’s Council of Advisors on Science and Technology [Green Energy]
38. Executive Order on Strengthening Medicaid and the Affordable Care Act [Healthcare]
39. Memorandum on Protecting Women’s Health at Home and Abroad [Healthcare]
40. A Proclamation on Adjusting Imports of Aluminum Into the United States [Economy]
41. Memorandum on Maximizing Assistance from the Federal Emergency Management Agency [Covid]
42. Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans [Immigration]
43. Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border [Immigration]
44. Executive Order on the Establishment of Interagency Task Force on the Reunification of Families [Immigration]
45. A Proclamation on American Heart Month, 2021 [general]
46. A Proclamation on National Black History Month, 2021 [general]
47. A Proclamation on National Teen Dating Violence Awareness and Prevention Month, 2021 [general]
48. Executive Order on Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration [immigration]
49. Memorandum on Revitalizing America’s Foreign Policy and National Security Workforce, Institutions, and Partnerships [international]
50. Memorandum on Advancing the Human Rights of Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Persons Around the World [equity]
51. Executive Order on Blocking Property with Respect to the Situation in Burma [International]
52. Notice on the Continuation of the National Emergency with Respect to Libya [International]
53. Executive Order on the Establishment of the White House Office on Faith-Based and Neighborhood Partnerships [general]