Preparing for 2021: How President-Elect Biden Can Govern by Executive Power

Pillsbury Winthrop Shaw Pittman LLP

With potential gridlock in Congress and a national public health and economic crisis requiring immediate action, businesses can expect President-elect Biden to take swift action by using his executive power upon taking office.


  • Starting on day one, President-elect Biden will begin reversing President Trump’s policies and imposing regulatory regimes dismantled over the past four years by executive power.
  • Regardless of who controls the Senate after the January 5 Georgia runoff elections, President-elect Biden is expected to take policy leadership via executive action on COVID-19, climate change, immigration and labor, among other areas within his first 100 days in office.
  • While limited in scope, executive action will allow the incoming president to act immediately without waiting for congressional approval or notice-and-comment rulemaking.

Swift action, a frequent promise of the incoming Biden/Harris administration, is expected to result in extensive use of executive power by the President-elect to implement his agenda beginning on Day 1. Regardless of which party controls Congress, the President-elect is empowered to issue executive orders and policy directives to reverse many of the Trump Administration’s initiatives and take policy leadership on key aspects of his campaign platform. Immediate action on immigration, climate change, public health and environmental regulation, among other issues, should be expected in his first weeks in office. Further, the Executive Branch will likely issue directives to swiftly implement a nationwide strategy to combat COVID-19 (discussed here).

President Biden’s Executive Power in Action

While Democrats retained their majority in the House of Representatives after the election, albeit with slimmer margins, President-elect Biden may be forced to govern with a divided Congress should Republicans win at least one of two runoff elections occurring in Georgia in early January 2021. Even if Democrats succeed in capturing both Georgia senate seats to create a 50-50 tie (with Vice President-elect Kamala Harris serving as a tiebreaker), a closely divided Senate will make quick legislative action difficult. As such, President-elect Biden may follow the expeditious route of executive action to combat COVID-19 and implement the Biden/Harris “Emergency Action Plan to Save the Economy,” among other agenda items.

Regardless of who controls the Senate, the President-elect will likely use his authority to revoke many of the Trump Administration’s executive orders that disempowered federal agencies. The Biden/Harris Administration will likely bring back, and expand upon, Obama-era regulatory regimes and restructure the Executive Branch to reflect pressing issues such as COVID-19 and climate change. Specific measures that may be implemented by executive power include the following:

  • COVID-19. To circumvent the laborious legislative process, President-elect Biden will use executive authority to implement his national public health and economic response to fight COVID-19. Specifically, President-elect Biden could direct companies to produce equipment and supplies for health workers as authorized under the Defense Production Act. He has also expressed his intent to impose a national mask mandate in all federal buildings and in interstate transportation and indicated that he will urge the country to wear masks for 100 days. Other agenda items include providing “immediate assistance” to state and local governments that have been impacted by the pandemic, especially to cover revenue losses incurred. In addition, he will likely reverse President Trump’s efforts to withdraw the U.S. from the World Health Organization and call for increased cooperation and coordination with international partners within the organization.
  • Climate change. Upon arriving in office, President-elect Biden has promised that he will rejoin the Paris Climate Accord. Despite the aspirations of some congressional Democrats, broad-based climate legislation is unlikely to pass in Congress. As such, the President-elect will likely use his executive power to infuse climate-related priorities into policy initiatives at the Departments of Transportation, Agriculture and Defense, among other agencies; bring back Obama-era fuel economy standards for vehicles as well as other emissions restrictions that have been rolled back by the current administration; and perhaps, rescind a key permit granted by President Trump to build the Keystone XL gas pipeline. He will also seek to strengthen the Environmental Protection Agency (EPA), which according to the President-elect has been “eviscerated” under President Trump.
  • Cybersecurity. In light of recently reported cyberattacks on federal departments and agencies, as well as on private IT services companies, it is likely that President-elect Biden will take executive action early in his tenure to confront the alleged nation-state threat actors and harden national defenses against cyberattacks.
  • Student loan forgiveness. The Biden team has indicated that student loan forgiveness will be a priority within his first 100 days in office. While a congressional debt forgiveness package remains a possibility, the Biden team is considering using executive action to immediately provide student loan relief to thousands of Americans and is being encouraged in this mission by high-profile congressional Democrats. However, the Biden team has not yet revealed specifics. Potential relief may include a certain amount of debt forgiveness, ranging anywhere from $10,000 to $50,000 and subject to income limits, an extension of the COVID-19 forbearance period, and/or a lowered federal interest rates on future federal loans.
  • Labor. The incoming administration will likely take measures to reinstall job protections for federal workers and expand upon fair pay and safe workplace measures implemented under President Obama. President-elect Biden is also expected to direct additional resources to strengthen the Occupational Safety and Health Administration (OSHA) and ramp up enforcement by increasing inspections, filling vacancies and urging the agency to create an emergency temporary standard to ensure that businesses take protective measures to prevent exposure to COVID-19. The Biden Administration may also take action to ensure greater protection for “gig economy” workers, though it could meet significant resistance from on-demand delivery companies and other stakeholders related to any new gig worker policies
  • Trade and foreign policy. Presidents often use executive orders to solidify foreign policy. Although President-elect Biden has been less vocal regarding the specifics of his trade agenda, he may use his authority to revoke President Trump’s executive orders that affect trade, e.g., Section 232 tariffs on steel and aluminum imports, and reshape relationships with trading partners. The President-elect will also likely use his executive power to shape U.S. foreign policy around the world. He may issue directives to review and alter President Trump’s efforts to withdraw troops in Afghanistan and Germany, as well as begin negotiations aimed at reentering the Iran nuclear deal, restore major military exercises with South Korea, and end U.S. support to Saudi Arabia as it continues its war in Yemen. With respect to arms control, the incoming administration will likely extend the New Strategic Arms Reduction Treaty with Russia for five years, if needed, before its expiration in February 2021.
  • Immigration. President-elect Biden is expected to use his executive power to undo the Trump Administration’s immigration-related policy initiatives and modernize the country’s immigration system. Specifically, he will halt construction on the border wall; reverse an order banning travelers from 13 predominantly Muslim countries; return to the Obama-era criteria limiting deportations to people with serious criminal records in the United States; raise the refugee limit sevenfold, to 125,000 per year; remove certain obstacles for asylum-seekers; reverse President Trump’s public charge rule; reinstate the Deferred Action Childhood Arrivals program; and order an “immediate review” of “Temporary Protected Status.”

But Are They Legal? The Nuts and Bolts of Executive Action

Executive action, while an expeditious tool, can only be used in limited circumstances. Its use is often challenged in court—and sometimes even overridden by legislation—making it important to understand the limits of the power, whether the use can be challenged by those who might object, and what can really be accomplished by taking executive action.

Executive action, which constitutes executive orders, proclamations and presidential memoranda, enables a president to implement policy change regardless of the majority in Congress and without having to wait through notice-and-comment rulemaking. The President can draw on constitutional authority, statutory authority and inherent authority to issue an executive action. With respect to constitutional authority, Presidents will often rely on Article II of the Constitution, which vests executive powers in the President, requires that the President “shall take Care that the Laws be faithfully executed,” and assigns the President the roles of commander in chief, head of state, chief law enforcement officer and head of the executive branch. Statutory authority, implied or expressed, is granted by Congress, and the President’s inherent authority and “incidental powers” are inferred from the Constitution.

The President or another executive branch official acting at the President’s direction can issue executive orders to interpret, implement or administer existing laws. Generally, the president will issue directives to reorganize the structure of the executive branch, take policy leadership, provide guidance regarding how a particular statute should be implemented, or put in place foreign policy initiatives. Additionally, executive orders are a critical tool during times of national emergency. Executive action cannot create new law nor appropriate new funds from the U.S. Treasury, as such powers are vested in the Congress.

Executive orders that are issued pursuant to constitutional or statutory authority have the force and effect of law. They can be challenged in federal court by those affected by the order, overturned by a sitting president, or modified or nullified by Congress where they are issued pursuant to congressionally delegated authority. However, while a future sitting president may revoke President-elect Biden’s directives, the courts and Congress are not likely to do so. Courts will grant significant deference to the executive branch striking down executive orders where the courts find that the president lacked authority or that the action was unconstitutional in substance. Congress is unlikely to revoke executive actions as a supermajority would be required to override a presidential veto. Instead, Congress may pass legislation to either support or hinder the implementation of an action, i.e., by removing funding, if it acts at all.

The Supreme Court will tend to view executive orders that address national security or foreign policy affairs more leniently than those that involve social, economic and political issues.

Below are examples of recent executive actions that have been challenged in court:

  • Funding for cities that do not work with federal immigration authorities—split among federal appeals courts. Shortly upon taking office, President Trump signed an Executive Order 13768, titled Enhancing Public Safety in the Interior of the United States, threatening to withhold federal grants from “sanctuary cities” that elect not to help federal authorities detain undocumented immigrants. Legal challenges to the executive action resulted in a split among the federal appeals courts—the Ninth, Seventh, Third and First circuits have refused to enforce at least some of the conditions laid out in the executive order while the Second Circuit upheld all the challenged conditions. On June 15, 2020, the Supreme Court decided not to take up the case.
  • Military transgender ban—remains in place. In 2017, President Trump announced on Twitter that the “United States Government will not accept or allow” transgender individuals “to serve in any capacity in the U.S. Military.” In January 2019, the Supreme Court voted 5-4 to lift several preliminary injunctions issued by lower courts allowing transgender military service, which suggests that the Court would likely uphold the ban if they ever rule on the issue. In March 2019, the Defense Department issued a memorandum establishing a policy that allows members who received a gender dysphoria diagnosis after April 2019 to serve according to their biological sex. Upon taking office, President-elect Biden is expected to repeal the policy, which is currently being challenged in court by LGBT advocacy groups.
  • Muslim travel ban—remains in place. On January 27, 2017, President Trump signed Executive Order 13769, titled Protecting the Nation from Foreign Terrorist Entry into the United States, suspending the entry of nationals from eight Muslim-majority countries for 90 days. The American Civil Liberties Union (ACLU), among others, launched a series of challenges to the action in courts across the country. Although federal courts struck down the first and second iterations of the Muslim ban on the basis that the ban violates both the Constitution and federal law, the Supreme Court upheld the third Muslim ban in Hawaii v. Trump in June 2018. The Court found that the presidential proclamation was justified by national security concerns and that the President has broad authority to suspend entry into the United States. In its decision, the Supreme Court shed light on what actions were considered outside the scope of presidential authority, contrasting the Muslim travel ban with the forcible relocation of U.S. citizens to concentration camps on the basis of race which was at issue in Korematsu v. United States and officially banned by the Court in Hawaii v. Trump.
  • Termination of Deferred Action for Childhood Arrivals (DACA)—struck down. In September 2017, the Acting Secretary of the Department of Homeland Security (DHS) issued a memorandum terminating the Deferred Action for Childhood Arrivals (DACA), a program created by President Obama in 2012 to protect young undocumented immigrants from deportation. The termination announcement was challenged in federal courts in California, New York, Maryland and the District of Columbia. On June 18, 2020, the Supreme Court found that the rescission of DACA was arbitrary and capricious, in violation of the Administrative Procedure Act. However, it allowed the Trump administration to attempt to terminate DACA in a way that complies with federal law. Pursuant to the Supreme Court decision, DHS issued a second memorandum in July 2020 which directed DHS personnel to reject all pending and future initial requests for DACA and shortened DACA renewals, among other things. On December 4, 2020, a U.S. District Court in the Eastern District of New York, vacated the memorandum and fully reinstated the DACA program.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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