WaPo: "Biden plans immediate flurry of executive orders to reverse Trump policies"

Thanks to the Chief Justices's traps, repealing the DACA rescission may be tougher than it seems.


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.

NEXT: President Trump would not be the first President to boycott the inauguration of his successor who is sworn in by a Chief Justice with the first name of John

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  1. The Biden voters will suffer most under his administration. Soaring crime victimization, crushing of wages by immigrants, increases in taxes for everyone, and stealthy costs such as energy costs. Drops in profits will ensue, and proportional drops in the stock market. The pandemic is mutating into a more infectious version. This second season will start with a much higher prevalence baseline. Urban centers that voted for Biden will be hardest hit. The police will be limited to answering 911, taking reports, and filing them. Those female suburbanites will be carjacked by the Democrats they will be forced to accept into their suburbs. Their schools will be destroyed by fatherless children, forced on them.

    1. I would suspect the media is going to circle the wagons around Biden and switch from doom and gloom to sunny days are ahead or here. So even if there are 10x the deaths dumb people will feel better since theres nobody around to tell them about it anymore. Or if there are they get FACTCHECKED away by Suckerberg and Dorky. Kind of how the death tolls in Iraq and Afghanistan stopped mattering when Obama took office or how COVID went away out of respect for George Floyd for a week or two.

      1. The media and the Democrat Party, including Democrat Governors, are owned by tech billionaires. I oppose going after those employees.

        I suggest seizing the assets of these tech billionaires in civil forfeiture. They have allowed billions of crimes on their platforms. They committed millions of crimes themselves inflating viewerships and defrauding advertisers, including me.

    2. The American voters get what they deserve… every time. It will be no different in 2021

      1. Great suffering awaits our nation. It will not be Venezuela on steroids. It will not be the Great Terror of Stalin.

        It will be quite different, and 10 times worse. It will be the lockdown of the population.

    3. You could have just said, “I am a racist.” It would have been shorter and had just as much intellectual content.

  2. Roberts should be impeached for his decisions. He is a big government advocate, and part of the Deep State. All Supreme Court Justices are in insurrection against the consitution. They qualify, not just for impeachment, but for 10 year terms in federal prison. Article I Section gives all lawmaking powers to the Congress. By repealing laws in judicial review, they have violated that Section.

    1. Obvious troll is obvious.

  3. I like the idea of a brake on the administrative state too, but if administrative law is law, then the CRS is a legislative veto

    1. The 9th Circuit held, and I agree with it, that the CRA is part of the administrative law that administrative agencies are obligated to follow, not a “legislative veto” over it.

      The term “legislative veto” was used in Chadha to mean a congressional resolution that isn’t passed by both houses of Congress and/or isn’t signed by the President. But while the CRA calls the bills that rescind regulations “joint resolutions,” they have to be passed by both houses of Congress and signed by the President. This means they are laws, full laws, as much part of the law as the statute creating the agency that enacted the regulation in the first place. Administrative agencies are creatures of Congress. Their purpose is to enforce Congress’ will, not their own. The same power that Cogress has to create or abolish administrative agencies in their entirety also enables it to enact a statute to order the rescission of a particular regulation.

  4. In no way will Roberts stop Biden from rescinding Trump orders.

    1. Right. Roberts is very good at coming up with fiction to cover up the fact that he will decide the result he wants. A mandate is a tax, if that will get him where he wants. Heck, a pussy cat can be a tiger, or vice-versa, so long as the “integrity” of the court is maintained.

    2. That may be

      But there’s a 5 member conservative majority on the SC, and they may find it entirely appropriate to enforce every single one of those “Roberts and the Left” precedents on Biden, and Harris.

      And I would bet that Once it’s 5-3 against Biden, Roberts will join in and make it 6-3, since it’s his precedent, and all he does by making it 5-4 is show what an ass he is

    3. No, but it will be the turn of R’s do do venue shopping in the search for nationwide injunctions.

  5. Guys, this is no way to run a country.

    A few thousand votes in suburban Pennsylvania = a massive pile of essential decisions go one way or another on a dime, the entire top of the civil service gets swapped out for partisans of the other party, etc.

    I thought the US were trying to be a civilised country? Shouldn’t you be striving to make up your mind about policies and stick to them? Even in Britain, where the constitution has an even stronger “elected dictator” flavour than in the US, the new government doesn’t start its reign by starting a big bonfire of the previous government’s policies.

    1. The US would like to be a civilized country, but it gets in the way of the people in power holding onto it.

    2. It’s the natural inevitable outcome of a government which meddles so much, so often, in daily life, with one rule for all. It’s one of the reasons the myth of the ignorant voter is so prevalent; pundits seem to think one party is an exact fit for everyone that votes for them, when the truth is that voters understand very well that no matter who wins, many of their policies will be against their wishes. Do you vote for the guy who wants to mandate peanut butter and jelly sandwiches and ban automatic headlights, or the guy who wants to mandate skinny leg jeans and forbid styling poodles?

      The only real solution is eliminate 99% of government, everything which violates individual choice. But government is the supreme monopolistic bureaucracy and never shrinks voluntarily.

      1. It’s the natural inevitable outcome of a government which meddles so much, so often, in daily life, with one rule for all.

        It really isn’t, because if that were true we’d see it in other democracies too. Instead it’s a consequence of the US winner-take-all election system, combined with its political culture.

        1. It really is, because if you open your eyes, you will see it on parliamentary and other democracies.

          1. Martinned has a point; you can have a permanent majority effectively disenfranchising a significant minorty as with the former Vlaams Bloc in Belgium or the permanent four-party coalition in Switzerland.

            1. If you think that was Martinned’s point, and if he agrees, then you are both talking about something else.

              1. That doesn’t sound familiar at all.

                (Or logical, for that matter. It is inherent in democracy that parties that represent a minority of voters will end up a minority in the legislature. That’s kind of the idea. I fail to see how that “disenfranchises” anybody. I don’t think anyone would say that California conservatives are disenfranchised even though the Republicans haven’t had a majority in either house of the state legislature since 1996.)

  6. 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.

    Oh, Josh, Josh, Josh. Roberts is going to let Biden’s EOs go through because NotOrangeManBad.

    1. Oh Ted, Ted, Ted, it’s not Roberts’ choice anymore, there are 5 conservative justices who will faithfully carry out his previous agenda, especially if he personally wants a new agenda.

  7. While Americans were focused on the Reds who had tanks and artillery, the Communists here fought a 50 year battle and won without firing a shot

    1. Yes. The KGB got their preferred candidate elected President of the United States. Quite a coup! (In the literal and metaphorical sense.)

      1. Yep, Communists here (America) mostly are Progressive Educators and their tens of millions of clueless victims.

  8. Well, not quite…… just as every ‘executive action’ proposed by trump was challenged in lib-friendly courts … invalidating Trump’s ‘executive actions’ or at least delaying them for years until the Supreme Court could weigh in —— Biden’s ‘executive actions’ can be challenged in conservative – friendly courts (and there is now a MAJORITY of Trump-appointed conservatives in the judicial and appeals legal system —- thanks to the liberals lowering of the vote threshold to confirm judicial appointees back in 2013 ) …. with no relief expected in the Supreme Court when it arrives there.

    Any Biden ‘executive action’ could, should and WILL be challenged in court.

    Biden should expect to be stonewalled every bit as much as the liberals stonewalled Trump.

    1. Hey, that’s a good point.

      This can be used to get SCOTUS to gut the national injunction! All we need is a judge in Idaho granting national injunctions against every Biden policy, and poof! The weight and history of precedence will suddenly have always gone the other way.

      Nah, never happen. Federal judges will never throw away one of their greatest powers, no matter what party it is.

  9. Center for Biological Diversity never argued that the CRA violates Chadha. It argued that it voliolates the Take Care Clause. The argument was that when Congress rescinds a regulation without changing the underlying law, the Executive’s duty hasn’t changed, so it’s still onligated to re-enact the same regulation.

    The 9th Circuit very sensibly found that whwn Congress passes a statute, it necessarily changes the underlying law, and in partivular, when passes a statute ordering an agency to rescind a regulation, the agency must Take Care to do so.

    There is no Chadha issue because regulatory recision “joint resolutions” pass both houses of Congress and get signed by the President, so they are full-bore acts of Congress under Chadha. The CRA merely provides for expedited procedures, short-circuiting the usual committee hearings and debate and bringing regulatory recission bills to a vote more quickly than most bills.

  10. “And I think the Democrats will be able to peel off some Republican vote on some of the more controversial Trump-era regulations”

    Even if Biden holds on to “win”, i don’t believe there’s the slightest chance GA is going to vote to give him the Senate, and unlimited control of the gov’t.

    And I don’t see Cocaine Mitch letting CRA resolutions come up for a vote.

  11. I think it will be fun to see Roberts force the Executive branch to hunt down immigrants put them in concentration camps and eject them from the country

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