Presidential decrees and actions taken by federal agencies mean a lot to the president, who has only a narrow majority in Congress but the Republican-packed judiciary is skeptical about delegated powers and conservatives intend to take political advantage of Democratic efforts to skirt the legislative process.
President Joe Biden wants to move quickly on his coronavirus relief and economic reform program, and therefore he is using decrees to exert his executive power.
Biden signed more than 50 executive orders during his first month in office, almost as many as his four predecessors combined. Among those executive actions are 22 that are direct reversals of former President Donald Trump’s policies.
But the Democratic president may soon run up against a major obstacle: an increasingly less cooperative judiciary and conservatives determined to exact political profit from this skepticism.
Nine of Biden’s 11 actions regarding immigration are reversals of Trump’s policies, combining a hot button issue with an area of unsettled law where judges can wreck havoc.
“And I want to make it clear — there’s a lot of talk, with good reason, about the number of executive orders that I have signed — I’m not making new law; I’m eliminating bad policy,” Biden said as he signed a series of actions on immigration from the Oval Office on February 2. “What I’m doing is taking on the issues that — 99% of them — that the president, the last president of the United States, issued executive orders I felt were very counterproductive to our security, counterproductive to who we are as a country, particularly in the area of immigration.”
Last week, two Texas judges appointed by Donald Trump decided to block two decisions by Joe Biden: on February 23, explaining that the Department of Homeland Security had exceeded its authority.
Stating that the agency had not sufficiently justified its decision, one judge issued a nationwide injunction against Biden’s decree suspending for 100 days the deportation of migrants.
Two days later, a second judge declared unconstitutional the moratorium on evictions during the duration of the pandemic, an order issued by Trump but extended by Biden.
At the same time, the Western Energy Alliance, a Denver-based organization that represents 200 independent oil and gas producers, has filed a lawsuit to overturn the executive order suspending oil and gas farming on federal lands.
“We have our chances in court” said Kathleen Sgamma, president of the alliance. “Donald Trump has appointed more than 230 judges, that’s no small feat.”
While it is too early to know how these cases will turn out, one thing is certain: they are slowing down Biden’s ambitions, particularly in terms of reducing greenhouse gas emissions, better protection of workers and the fight against racial inequalities.
Republicans have lost control of the White House and Congress, but before leaving, Trump and Mitch McConnell, the former Republican Majority Leader in the Senate, appointed a host of judges from a movement opposed to the delegation of power to federal agencies instead of being exercised directly by elected representatives.
“Biden and his agencies will have in front of them the legal hurdles that Obama and his agencies did not have,” said Adam J. White, a regulatory expert at George Mason University Law School. “If they want to continue Obama’s work, they are going to have a hard time. “
As Democratic administrations tend to resort to regulation more often than Republican administrations, they are more vulnerable to this movement.
Many academics believe, however, that at a high level, justice is not partisan but realists take a different view looking at a Supreme Court that on a 5-4 split came down on the wrong side of voting rights in Shelby County v. Holder, personal privacy in Burwell v. Hobby Lobby Stores, Inc., corrupt campaign practices in Citizens United v. Federal Election Commission.
The Supreme Court unanimously overturned former Virginia governor Robert F. McDonnell’s public-corruption conviction and imposed almost impossible standards for federal prosecutors who charge public officials with bribery in McDonnell v. United States, so even when there is little division, jusice and common sense are on the losing end.
The regulatory initiatives proposed by Trump have thus been more often criticized than those of Obama, sometimes by judges whom the former Republican president himself had appointed, reveals an analysis carried out by the Institute for the Integrity of the New York University Law School.
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