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Biden seen making 'aggressive' use of executive orders with Congress gridlocked

U.S. President-elect Joe Biden will become arguably the most powerful man in the world in January, but in America, the checks and balances the country's political system is famed for will severely restrict him.

Bitter partisanship has left Congress gridlocked for over a decade, prompting presidents to lean increasingly on their executive powers to attain their goals. Unless the Democrats overturn two Senate seats in Georgia in a Jan. 5 runoff election, Biden faces the same legislative hurdles as Presidents Donald Trump and Barack Obama and is expected to continue the recent tradition of using executive actions to realize parts of his policy agenda.

With Congress required to sign off on budget increases, Biden's multitrillion-dollar big-ticket policies — a carbon tax, expanded government health programs, universal child allowance, infrastructure investment and COVID-19 relief packages — will be difficult to achieve without bipartisan support.

However, a president has significant discretionary powers through executive orders, memoranda and proclamations, while the complexities of American law allow wiggle room for creative interpretations.

"You are limited by what the law allows, but the good news for presidents is that the law allows quite a lot," Andrew Rudalevige, Thomas Brackett Reed professor of government at Bowdoin College, said in an interview, predicting that a Biden presidency will include "pretty aggressive use of executive actions."

In the past, executive orders have been used to racially integrate the armed forces, to forbid people from hoarding gold and to take steel mills under federal control. Biden is expected to start his term with a flurry of executive orders that reverse Trump's policies.

Oil and gas, climate

"The low-hanging fruit for a Biden presidency would include temporary protected status for all immigrants arriving from COVID-infected countries, shutting down oil and gas leasing on federal lands, redefining poverty levels, and so forth," said John Owens, professor of U.S. government and politics at the University of Westminster.

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"Over the slightly longer term, rejoining the Paris climate agreements, appointing a majority to the NLRB — National Labor Relations Board — forgiving student loans, closing Guantanamo, reworking farm and food policy, lowering the cost of drugs and licensing generic drug manufacturing, providing a public option for financial services, and others," Owens said.

Trade policy

In international affairs, the Constitution provides the sitting president a freer hand.

On trade, Biden has set out his stall that he would want to improve relations with traditional U.S. allies such as the European Union and could scratch off the tariffs on steel and aluminum — imposed by Trump on the pretext of national security, an area where the executive has control — without approval from Congress. The case for doing so is particularly strong now as domestic steel prices have rocketed on insufficient supply, partly owing to the reduction in import availability as a result of the tariffs.

Biden could also reverse the Trump administration's policies toward China, although he will have to weigh the pros and cons, both political and economic, of easing relations.

"Our baseline sees the Biden administration ending the 7.5% tariffs introduced in 2019 on $110 billion of consumer imports from China, as a gesture of goodwill and to lower costs for U.S. consumers," James Watson, senior U.S. economist at Oxford Economics, wrote in a research note.

Biden will also have control over negotiating potential free-trade agreements with either the EU or the U.K., despite the Constitution giving Congress authority in this area.

"Over time, [Congress] has given fast-track authority to the executive branch, which is an agreement that Congress will not amend the trade deal presented to them. Since the 70s, they've given the president the power to negotiate a deal, and then Congress can vote up or down," Rudalevige said.

Undoing Trump

Among the easiest measures to take legally will be to reverse those pushed through in executive actions by Trump, who was unable to do much business with Congress beyond his tax cut deal.

Having issued 61 so far in 2020, Trump has been the most liberal exponent of executive orders in a single year for at least the last 25 years, though by historical standards, he has nothing on Franklin D. Roosevelt, who issued over 3,700 executive orders during his 12-year presidency, creating entire federal agencies along the way as part of his New Deal to lift the U.S. out of the Great Depression in the 1930s.

In issuing 198 executive orders in his one-term presidency, Trump outpaced predecessor Obama, who issued 276 during his eight-year stay in the White House, though Obama also made extensive use of presidential memoranda, another tool open to Biden, where the president in effect tells an agency to do something using its own power.

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For instance, after Congress refused to sanction legislation designed to grant rights to immigrants who entered the U.S. illegally as minors — the Development, Relief, and Education for Alien Minors, or DREAM, Act — Obama used a Department of Homeland Security memorandum to enforce the protections.

Obama also leveraged proclamations, another tool in the president's arsenal, to declare national monuments in his last days in office as part of his conservation legacy. Most famously, Abraham Lincoln used a proclamation to emancipate slaves in 1863.

"Obama used the immigration and nationality act for [Deferred Action for Childhood Arrivals]. Trump used the same act to pass travel bans. The Clean Air Act is another example; very vague legislation not updated for 30-plus years. Obama used that to boost the enforcement of climate policy, and then Trump did the opposite of that," Rudalevige said.

Biden is tipped to use the Clean Air act legislation to tighten regulations around transport emission standards.

Student debt

Another area where Biden may want to test the extent of his powers is in the cancellation of the $1.7 trillion student debt burden, a pet project on the left wing of the Democrat party. Sen. Elizabeth Warren, a one-time frontrunner for the Democrat candidacy for the 2020 presidential election, has proposed canceling the first $50,000 of debt, arguing it is legally achievable through the Higher Education Act of 1965.

Rudalevige noted that as student loans are the responsibility of the Treasury, the president "does have some ability to defer repayment." In effect, whereas to create a student aid program would require funding approval from Congress, the law allows the president to lean on the Treasury to stop taking loan repayments, creating the same effect. So far, Biden has not commented on whether he would want to do that.


Owens also pointed to the possibility of using the COVID-19 crisis to expand healthcare coverage.

"The Department of Health and Human Services, part of the executive branch, could immediately — with some creative application of existing laws — give all 16.5 million Americans infected with COVID the option of free Medicare coverage, without any new legislation. In so doing, Biden would effectively create a single-payer health system in the U.S.," Owens said.

In order to lean on government agencies, putting the right people in place will be key, according to Rudalevige, who noted that Trump's initial oversight of the importance of making key appointments stunted his progress. "It's not just the piece of paper at the White House, it's also the follow through on the ground," Rudalevige said, adding, "implementation is half of the game."

Understanding the due process will also be crucial. Trump failed to undo Obama's Dreamer legislation, but Rudalevige said that was as a result of "sheer incompetence" rather than the lack of power of the executive, with the Supreme Court rejecting Trump's case due to its procedure rather than its merit.

The heavy leaning of the Supreme Court in favor of Republicans potentially makes it more likely that legal challenges to Biden's policies will ultimately be successful. But Rudalevige expects the Biden administration to be better prepared in attempting to achieve its objectives.

"They’ll be looking at the nooks and crannies of the executive code to see what is possible," he said.