The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The horns hadn't stopped beeping in Wilmington when the Washington Post stated the obvious: "Biden plans immediate flurry of executive orders to reverse Trump policies."
He will rejoin the Paris climate accords, according to those close to his campaign and commitments he has made in recent months, and he will reverse President Trump's withdrawal from the World Health Organization. He will repeal the ban on almost all travel from some Muslim-majority countries, and he will reinstate the program allowing "dreamers," who were brought to the United States illegally as children, to remain in the country, according to people familiar with his plans….
"The policy team, the transition policy teams, are focusing now very much on executive power," said a Biden ally who has been in touch with his team who, like others interviewed for this story, spoke on the condition of anonymity to discuss private conversations. "I expect that to be freely used in a Biden administration at this point, if the Senate becomes a roadblock."\
A Republican-held Senate — or even one with a narrow Democratic majority — probably will affect Biden's Cabinet picks given the Senate's power to confirm nominees.
One option being discussed is appointing Cabinet members in an acting capacity, a tactic that Trump also used.
Yes, it is time everyone, to switch positions on executive action, administrative deference, and nationwide injunctions. The past four years have been fun. Now it's time to change things up.
In a best-case scenario, the Democrats will have 50 votes in the Senate. Any major legislation would require several Republican votes to beat a filibuster. And, if the Republicans carry a slim majority, then major legislation would likely not even be brought for a vote. Given these dynamics, it is entirely unsurprising that the Bide administration would turn to robust executive action to accomplish its goal.
Alas, the Biden administration will soon meet the Roberts buzzsaw. Over the past few years, the Chief has laid down a gauntlet of traps for Presidents who try to undo the actions of their predecessors. And I am convinced Roberts set these traps, knowing full well that he could snare them upon a Democratic President. The long game is quite long. Over the past four years, the Court's progressives were happy to join these precedents. And the Court's conservatives bitterly dissented. Now, it's time to change things up.
Of course, the Biden administration will likely bring more rigor to its rulemakings. Indeed, I'm sure many academics who were fierce critics of the Trump administration will soon find new employment in the Biden administration. But you know what? It doesn't matter. Chief Justice Roberts is the king of APA hindsight. He can write an opinion that makes it seem like the most innocuous omission in the regulatory process was fatal. He did it with Trump's DACA rescission. And he can do it again with Biden's rescission of Trump's DACA rescission. In July I wrote a post about how this litigation may proceed. I think we will be stuck with some of President Trump's policies for many years to come. Just in time for 2024. My article on "presidential reversals" may still see some light.
Without question, the most effective weapon to rescind regulations will be the Congressional Review Act. CRA resolutions are not subject to the filibuster. And I think the Democrats will be able to peel off some Republican vote on some of the more controversial Trump-era regulations. The Center for Biological Diversity argued that the CRA resolutions were unconstitutional, and failed to conform with INS v. Chadha. Thankfully, the 9th Circuit disagreed. Stay tuned.