NY Times: "On his first day in office alone, Mr. Biden intends a flurry of executive orders that will be partly substantive and partly symbolic"

Biden will reportedly rescind the travel ban, rejoin Paris agreement, extend eviction moratorium, and issue mask mandate for federal property and interstate travel.


The New York Times has reviewed "a memo circulated on Saturday by Ron Klain, his incoming White House chief of staff" about President-Elect Biden's flurry of executive actions for January 20:

They include rescinding the travel ban on several predominantly Muslim countries, rejoining the Paris climate change accord, extending pandemic-related limits on evictions and student loan payments, issuing a mask mandate for federal property and interstate travel and ordering agencies to figure out how to reunite children separated from families after crossing the border. . . .

The rescission of the travel ban should not be difficult. President Trump was able to issue the proclamation unilaterally. I am not up to speed on the specifics of rejoining the Paris accords.

I wrote that Trump's eviction moratorium was likely unlawful. There are several cases pending that challenged that policy, including by the New Civil Liberties Alliance, the Texas Public Policy Foundation, and the Pacific Legal Foundation. Presumably, those cases will be amended to include the new Biden policy. We may yet see the first nationwide injunction agains the Biden administration in one of those cases.

I have also written about the validity of mask mandate for federal property and interstate travel (here, here, here, and here). The former type of mandate would be easier to enact. The latter is much more context specific. Planes and trains are perhaps permissible, but automobiles may go too far. The article suggests a more moderate policy may be in the cards:

As with many of Mr. Trump's own executive actions, some of them may sound more meaningful than they really are. By imposing a mask mandate on interstate planes, trains and buses, for instance, Mr. Biden is essentially codifying existing practice while encouraging rather than trying to require broader use of masks.

Biden will then issue a raft of orders on days 2 through 10:

On Mr. Biden's second day in office, he will sign executive actions related to the coronavirus pandemic aimed at helping schools and businesses to reopen safely, expand testing, protect workers and clarify public health standards.

On his third day, he will direct his cabinet agencies to "take immediate action to deliver economic relief to working families," Mr. Klain wrote in the memo.

The subsequent seven days will include more executive actions and directives to his cabinet to expand "Buy America" provisions, "support communities of color and other underserved communities," address climate change and start an effort to reunite families separated at the border.

I look forward to the posts on the Take Care Blog about the validity of these actions:

On the other side, Mr. Biden risks being criticized for doing what Democrats accused Mr. Trump of doing in terms of abusing the power of his office through an expansive interpretation of his executive power. Sensitive to that argument, Mr. Klain argued in his memo that Mr. Biden will remain within the bounds of law.

"While the policy objectives in these executive actions are bold, I want to be clear: The legal theory behind them is well-founded and represents a restoration of an appropriate, constitutional role for the president," Mr. Klain wrote to his staff.

Biden also proposes legislation that would "providing a pathway to citizenship for 11 million people in the country illegally."

Mr. Biden's determination to ask Congress for a broad overhaul of the nation's immigration laws underscores the difficulties. In his proposed legislation, which he plans to unveil on Wednesday, he will call for a path to citizenship for about 11 million undocumented immigrants already living in the United States, including those with temporary status and the so-called Dreamers, who have lived in the country since they were young children.

If enacted, that legislation would moot out the longstanding DACA litigation. This bill would also likely shorten massive backlogs in the immigration courts.

NEXT: RIP William R. Allen (1924-2021)

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  1. I would like to see immigration reform, and then I remember how Bush couldn’t get it done.

    1. Trump gave it back rightfully to the Legislature. Ask Nancy Pelosi where her plans been hiding for 3 years.

  2. The jewish agenda advances, restriction to speech, gun restrictions, after birth abortion, citizenship for all illegals, open borders, advancement of black victimhood, attack of the white people, destruction of a christian society, shredding of the Constitution …. can’t see that coming???

    1. Don’t forget the molesting of young Aryan women in Hollywood show business. That’s my favorite part of my job!

  3. And his handlers will call a lid at 10AM

  4. Whiplash changes in agency positions might lead to a regulatory state whose polices are carefully examined by courts on the basis of the agency’s interpretations’ thoroughness, veracity, consistency, and power to persuade. Congress can’t politically cede politically mutable discretion.

    Mr. D.

    1. Mr. D. — In short, the nation could suffer politically instigated whiplash plus judicially decreed whiplash? And that’s better?

    2. I agree — the precedent has been established.

      I can also see EOs challenged on their merits, e.g. “support communities of color and other underserved communities” strikes me as a slow moving softball pitch for a Title VI challenge, in what could actually be the case that takes out affirmative retribution as a whole.

      After all, 25 years ago, we were told that it would be over in 25 years…

  5. This bill would also likely shorten massive backlogs in the immigration courts.


  6. On evictions: I practiced law in DC for almost 50 years, and although I didn’t do evictions, I did represent residential landlords on other matters. As I recall, the DC Courts banned common law “self-help evictions” (i.e., the landlord’s agents remove the tenants’ belongings and change the locks so the tenants can’t re-enter) in part on the rationale that it was unnecessary because of the availability of judicial evictions. If judicial evictions are no longer available, why doesn’t a landlord have the right to exercise self-help to remove someone who is occupying the landlord’s property without paying rent? And we shouldn’t want that to happen, should we? We also don’t want landlords turning off utilities to non-paying tenants. But if you bar judicial remedies, what rationale is there to bar self-help? Is the Government taking a leashold interest in the property, for which it should be paying the landlord just compensation? It would almost be worth coming out of retirement for that case! Almost.

    1. I see it also as a taking by the government.

      In some cases, the owner and property are in the same state so it’s intrastate regulation which is supposed to be something inaccessible at the federal level.

    2. To the extent that the moratorium applies to judicial evictions, I’m not sure how that doesn’t violate the right to petition.

    3. Massachusetts bans self-help evictions by statute.

      What I hear quietly from cops is that some landlords hire thugs to beat up undesired tenants to encourage their departure. Cheaper than hiring an attorney even before the moratorium.

      1. What I hear quietly from cops

        No, you don’t.

  7. Strengthening “buy America[n]” policies? Wouldn’t that be nationalistic?

    1. Of course, it is protectionism writ in a different hand

  8. “While the policy objectives in these executive actions are bold, I want to be clear: The legal theory behind them is well-founded…”

    I don’t recall a lawyer or representative of an administration since 2k that hasn’t claimed something quite similar in every instance. I was too young prior to 2k to be involved enough in what was going on politically to speak for going back further.

  9. Almost Eric… ????

    “… ordering agencies to figure out…” rarely leads to satisfying or desired outcomes. Letting illegal immigrants die of dehydration once having illegally crossed the border, rather than picking them up for deportation, is not necessary more humane.

  10. If Biden tries to re-join the Paris Climate Accord without sending it to the Senate for ratification (which will fail because it requires a 2/3rds vote) he should be impeached for that.

    He does not have the power to bind the US to a treaty unilaterally.

    1. It’s an accord, not a treaty. It doesn’t have the force of law and a subsequent president (or Biden himself) could withdraw by executive action, as Trump did.

      1. So then he’ll join it but not direct the EPA or DOE to make regulatory changes to comply with it? If they are going to use it as the basis for regulations it should be handled as a treaty.

        1. Wouldn’t that just be normal policy desires by the president, as long as if it falls within the range of autonomy granted by Congress for those regulations?

          I’ve never been a fan of the sophistry that regulations, which involve jail and millions of dollars in fines, can be spoken out of the mouth of the president, instead of Congress, but that’s the current state of the law.

        2. If they are going to use it as the basis for regulations it should be handled as a treaty.

          Where do you get that from? That is very much not the current practice; hasn’t been for a very long time, if ever.

  11. “Biden also proposes legislation that would “providing a pathway to citizenship for 11 million people in the country illegally.”

    How about people who have yet to enter the country illegally? We don’t want to set ourselves up to have the same problem in the future.

  12. Glad he’s not a dictator, he just plans on playing one in the Oval Office.

    1. Lol. Chutzpah, thy name is Brett.

    2. Brett — Unless you think i-dotting and t-crossing is dictatorial, I predict the courts will find Biden’s executive orders notably less dictatorial than Trump’s.

    3. How is any of this beyond the executive power, Brett. I’m always eager to go sight-seeing in your version of the Constitution.

      1. The Paris accord is a treaty, we can’t enter treaties without the consent of the Senate.

        The moratorium on evictions is a taking, and beyond federal enumerated powers. It’s barely possible that some clause in the federal guarantee of student loans authorized that moratorium, but I’d need to see it.

        His border enforcement orders will likely violate immigration statutes, but somehow those aren’t real laws, I gather.

        I guarantee you, he’s going to be doing things of a sort that would get Trump declared a dictator. He’s going to be doing things Trump wouldn’t have even suggested he had the power to do.

        1. How many treaties did Trump unilaterally abrogate?

          Didn’t hear you yelling at Trump about mortgages.

          Likewise Trump’s actions on immigration.

          I guarantee you, you will insist stuff Biden does makes him a dictator, and you will be laughed at considering how you’ve acted these past 4 years.

          1. IKR?

            I’m not super confident some of these orders, e.g., the eviction moratoriums, will survive challenge. What I am confident about is that anyone criticizing them as of 1/20/21 who had nothing to say about virtually identical orders before then isn’t a serious person.

  13. “The rescission of the travel ban should not be difficult. President Trump was able to issue the proclamation unilaterally.”

    You could say the same thing about DACA, yet it’s still with us. If the Roberts Court applies the DACA precedents fairly, then Biden will spend 4 (or 8) years pounding his head against the wall as the Supreme Court says, “Oh, you COULD rescind the travel ban… but not like that. And not like that. And also not like that.”

    1. Read the DACA case, if you want to argue administrative law.

      Where’s the balance of reliance interest here?

      1. No reliance interest at all. Playing stupid and saying, I didn’t know; is not a reliance interest. Obama said it wasn’t Constitutional and it could be overturned at any time in the future by a future President. Which it was. Despite the Courts making up bad law conceding any other President could act just as President Trump had but, he did it for the wrong reasons; because Orange man bad. The Courts have forever lost credibility with their clownish behavior the last 4 years. One judge in Hawaii, bans nation-wide. Appeals slow-walked. Unless Dems want it. Then hearings within 24 hours. How long was Judge Sullivan going to sit on the Flynn case? If Trump won, 5 more years? Where were the reliance interest in fair elections? Oh yes, Laches. How convenient. Can’t sue before, can’t sue after; can’t sue during; no standing. Apparently the Courts are still driving the Clown Car.

        1. It wasn’t just Obama saying it. The DACA paperwork told everybody that up front, that they were getting discretionary benefits that they were not to rely on continuing, they could be taken away at any time.

          If ever there was a case where the courts should laugh at assertions of reliance interests, this is it.

          1. Reliance interests aren’t obviated by notice.

            And it’s not like they mean you can’t do a thing, just that you need to do some homework. The bar is not high, Trump just failed to meet it because he’s bad at this.

            1. It was more like Dumb and Dumber:

              “You can’t triple stamp a double stamp.”

              1. Yeah, you haven’t read the case. Or don’t know admin law. It wasn’t some special exception.

        2. So you know the law, you don’t like it, and therefore it’s all biased.

          You are smart enough to walk up to reality, but then at the last moment you turn away.

          Sometimes things in a republic with people who disagree with you don’t turn out how you want.
          I’m preparing for a long while of that from the Supreme Court and my ideals.

  14. Day 11 – America says “Oh shit…this is what happens when you put liberals into office…”

    1. Without all the vote-rigging and massive Fraud involved here’s a real question to think about. How many actual American Citizens voted FOR Joe Biden. 40 million? 50 Million?

      1. It might have been less than that.

        But on most ballots his name appeared in the first slot people found when they were looking for ‘Not Donald Trump.’ So, he gets credit for the 40 or 60 million people who meant to cast that vote as well as however many others meant to cast a vote for Joe Biden.

    2. No Jimmy —
      Day 11 — stock market tanks.

      Day 12 — America says …..

  15. “On his first day in office alone, Mr. Biden intends to spend a lot more money the government doesn’t have”


    1. The return of the debt hawks, as predicted.

      1. I dunno about JerryB, but I’m not one of the migratory debt hawks, I’m one of the year round residents. If you’re a fan of big government, you don’t want to let things get too far out of hand, because insolvent governments might not be able to keep doing all the nifty things you want them to do.

        1. Same here.

          The past four years have been a two-sided clown show tango. Trump kicked it off, and I’ve written lamentations of the collapse of CNN into an anti-Fox News, with evening opinion shows dedicated to ripping on Trump, as opposed to, I don’t know, Fox ripping on Hillary.

      2. I’ve been saying we jumped over the cliff back in 2008, and the only question was whether we’d land foot first or head first at the bottom.

        One of my express reasons for supporting Trump was that he had experience going through bankruptcies.

        I’ve also pointed out that he tried budget cuts in 2017, and Congress sent him back spending increases with a veto proof majority, so he gave up that fight.

        I’d have preferred he kept making futile vetos, but didn’t get that.

      3. Y’all were real quiet these past 4 years, then. At least around here.

        1. I seem to recall Trump supporters deflecting complaints about spending under Trump with ‘Yeah, but what about Obama’s deficits!’. This was preceded by Obama supporters deflecting spending criticism by ‘What about Bush II’s spending!’.

          When you find yourself parroting what the other side was just recently saying … maybe time for a long walk and some careful thinking?

          Just as a math problem, work out what the budget looks like if the Treasury has to start paying some exorbitant interest rate, like maybe 3%, on the current debt. What happens to all the nice things you want to do with tax money then?

          1. Pretty sure Obama supporters aren’t and have never been debt hawks.

            1. In general, I agree.

              I’m curious how you get from ‘ Obama supporters deflecting spending criticism by ‘What about Bush II’s spending!’’ to Obama supporters being debt hawks?

              1. Because you seem to be implying some sort of both sides hypocrisy that I don’t think applies to the Obama supporters’ side (‘parroting what the other side was just recently saying…’).

                Trump folks, who previously cared about deficits, flipped. Obama folks (for lack of a better classification) never cared about deficits (at least in comparison to other issues) and never flipped, other than pointing out the hypocrisy of the Trump folks, and predicting they would flip once again.

                For me, the main thing debt causes is inflation, and inflation remains quite low, and does not tend to suddently go up. I’m not saying American debt doesn’t matter, but it empirically matters a lot less than I was taught.

                1. Fair enough, I’ll buy that. As the quip goes, we get to choose between tax and spend dems, or don’t tax and spend repubs.

                  However, I think ‘but what about the Bush spending!’ is a much lower quality response than ‘well, yes, the deficits are large, but justified in this particular case because …’. The fact that president N-1 ran deficits isn’t justification for president N to also do so.

                  It’s nice to be able to deficit spend when, on the personal level you get laid off, or on the national level if you have a recession, or war, or pandemic. But at some point you need to pay it off a bit, or you eventually won’t be able to just wildly increase spending again for the next layoff/recession/war/pandemic.

                  1. Hah. Fair enough, I’ll buy that as well.

                    Pointing out hypocrisy matters, but doesn’t prove anything about the principle the other guy is being hypocritical about; it just undercuts the good faith of their argument.

                    I think the analogy between sovereign debt and personal debt is a bad one.

                    Beyond that kind of defense attorney ‘you’re wrong but I have no counternarrative’ is the best I can do. Cosmology has nothing on macroeconomics when it comes to being arcane.

                    1. Well, for a physics analogy, you don’t have to be the equal of Feynman to know that perpetual motion machines don’t work. And the notion that the government can spend without limit, without end, and without consequence seems like a perpetual motion machine to me. If it was true, just send us all our billion dollar checks, and we can all retire simultaneously to a life of ease.

                    2. Honestly, I have no idea. It’s true that perpetual motion can’t work, but it’s also been disproven that what goes up must come down.

                      Were I forced to bet, I’d bet there is a limit, but that we’re not close to it right now given the metrics. But I’ve learned not to trust my intuition when it comes to scientific predictions.

  16. This is the difference between being a law professor and a lawyer in private practice who is actually paid to do something useful. No real estate lawyer I know (I am one) believes that the eviction moratorium is illegal or would advise a client to that effect. But law professors are free to pontificate and spout the most outlandish fantasies, because no one is paying them to give sound advice.

    1. That’s because a real estate lawyer in private practice has to worry about what the government will DO, not whether it’s actually legally legitimate.

      1. True. We are inside the cave, and Prof. Blackman is a philosopher king, whose rests on the true ontological substrate.

  17. Personally, I’m looking forward to what happens when a President issues an Executive Order that mandates masks in order to drive across state lines.

    The fastest way to heal a country and bring people together is to fight a common threat.

    1. He has to do something that differentiates him from Trump, who, if you remember the ads, is responsible for most deaths and 100% of the 40 million unemployed, who wouldn’t, presumably, be unemployed anymore because it would already be over and they’d be back to work.

      Yes, in a battleground state had interesting ads.

  18. Blackman’s comment – “I am not up to speed on the specifics of rejoining the Paris accords.”

    Wouldn’t rejoining the paris accords require 2/3 senate approval since it is a treaty for all practical purposes

    1. from the wiki:

      The Agreement differs from the 1997 Kyoto Protocol, the last widely adopted amendment to the UNFCCC, in that no annexes are established to lessen responsibility of developing nations. Rather, emissions targets for each nation were separately negotiated and are to be voluntarily enforced, leading United States officials to regard the Paris Agreement as an executive agreement rather than a legally binding treaty

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