Why Biden and Trump’s use of executive power matters
By Michael Jones
When the Supreme Court overturned the national right to abortion care almost two years ago, President Joe Biden signed an executive order to show solidarity with women and providers and to clarify the protections pregnant people were still entitled to despite the ruling.
When it was clear Congress wouldn’t send him a bill to cancel $10,000 on student loan debt, he signed another order that would’ve done so and added an additional $10,000 in relief for eligible students before the Supreme Court blocked the plan.
And when lawmakers had little appetite to extend gun safety reform beyond the relatively modest measures Congress passed in a 2022 law, the president took action to ban ghost guns and close loopholes the gun lobby had exploited for decades.
In this week alone, Biden has also leveraged the federal rulemaking process to provide automatic cash refunds to passengers when owed and protect consumers from costly surprise airline fees, cut greenhouse gas emissions and ensure young students have access to healthy school meals.
Former President Donald Trump signed his share of executive orders, too—most infamously to ban visitors from seven majority-Muslim countries. He also used them to enforce harsh border crackdowns, advance his unfinished border wall, roll back environmental protections, increase domestic energy production and restrict certain kinds of diversity training.
And if given a second term, it could get worse: Trump allies have created a collection of policy proposals for the president to start implementing soon after inauguration that would pressure the FDA to revisit and withdraw its initial approval of medication abortion, force the CDC to adopt messaging hostile to birth control and revive a push to add an unconstitutional citizenship question to the US Census that could result in a recount due to suppressed participation from immigrants.
It would also push to eliminate the independence of the Justice Department, Federal Communications Commission and Federal Trade Commission; direct Main Justice to pursue those Trump considers disloyal or political adversaries; give way to the largest domestic deportation operation in US history; and encourage the repeal of the Inflation Reduction Act, which includes the largest climate investment in world history.
All presidents have used executive authority, with recent occupants of the Oval Office stretching their constitutional powers to or beyond the limit—depending on whom you ask. But as Trump and President Biden face off for the second time in as many presidential election cycles with democracy on the line and many of our freedoms at stake, it’s worth considering how their approaches to wielding their constitutional authority could impact those who work and live at the margins.
A source close to the Biden administration told me that the president usually uses executive action to have a positive impact on people’s lives.
“It’s not there to fill some imaginary attacks on free speech and religious liberty that don’t really pan out when you put them under a microscope. It’s not there to take rights away from people,” the source added. “And so I think that that’s the really stark difference is on the one side, you have someone who is intending through the use of Project 2025 and other things to utilize the largesse of the federal government and his executive authority to attack his enemies, to circumvent Congress as much as he needs to because Congress won’t do what he wants.”
In a future Trump presidency, the source speculated the former president wouldn’t look to work with anyone. Instead, he would focus on exacting revenge and retribution against his political opponents at the expense of the American people.
“I think that’s really the difference: Who the executive actions benefit.”
If you ask administration officials, some of Biden’s executive orders are out of necessity, with the current Congress divided between the two parties. While Democratic votes are necessary to pass any meaningful legislation, Republicans still control which bills come to the floor and have proven unable to perform the fundamentals of governing their own agenda, let alone one borne out of bipartisan compromise. Across the Capitol, GOP senators can block proposals that fall short of the 60-vote threshold to limit debate, a maneuver more commonly known as the filibuster.
Regardless of who wins control of each chamber this fall, congressional gridlock is expected to persist since neither party is expected to win runaway House or Senate majorities this November. (Only about 30 competitive seats are up for grabs, split evenly between Democratic- and Republican-held districts.)
Still, I’m told the president has always preferred legislation over executive order and that the current division in Congress is anathema to his way of looking at things.
“I don’t think that engaging in executive authority is his first go-to because of his long experience in the Senate where he’s worked so bipartisanly across [the aisle],” the source close to the White House said. “His first inclination is not to go straight to the White House Counsel’s office and say, ‘What can I do? How can I how can I twist the law to make XYZ happen?’”
As I wrote yesterday, Biden is also aware that executive orders are policy bandaids that the next president, including Trump, can rip off.
“[The president is] a person who believes in our separation of powers and believes in Congress’s role to create enduring, responsible law for the American people that then the executive branch is tasked with enforcing or enacting on,” the source added.
It was a year to date when President Biden announced his candidacy for a second term when he asked voters to give him and Vice President Kamala Harris the chance to “finish the job.”
His allies on Capitol Hill, in the donor class and at advocacy groups across the country think his record in his first three years in office more than makes the case for four more. And they’ll tell you that record would be less substantive without Biden’s willingness to use executive action.
“If we don’t have someone in the White House who is going to continue properly implementing those investments and having cabinet secretaries that are properly monitoring them, it’s a waste,” the source said. “So I think that there’s so much more to be done on all of these issues. And I think this president is the one to do it both because of his experience and building bipartisan consensus in the Congress, but also his clear experience in building out an executive team that’s going to properly execute, both on things that Congress is giving them the authority to do, and on some of these things that Congress is, frankly, failing on.”
Michael Jones is an independent Capitol Hill correspondent and contributor for COURIER. He is the author of Once Upon a Hill, a newsletter about Congressional politics.
