President Biden's Executive Actions: Focus on Diversity and Equity

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Introduction

Hours after his inauguration on January 20, 2021, President Biden signed 17 executive actions covering a wide range of issues, including several focused on discrimination and racial justice, immigration, and environmental justice. Broadly speaking, and as summarized more fully below, the Biden Administration’s executive orders, memorandums and proclamations have revoked a range of Trump Administration orders and policies and underscore the new Administration’s intention to prioritize a comprehensive set of policies intended to enhance diversity and equity. One executive order, for example, directs all agency heads to affirmatively advance racial equity, while another embraces an expanded interpretation of Title VII that prohibits discrimination on the basis of sexual orientation and gender identity.

President Biden’s executive actions reflect an unprecedented effort by a presidential administration to address diversity and equity comprehensively, across multiple policy initiatives, agencies and departments. While most of this first set of executive actions are aimed at federal agency conduct, their pervasive focus on diversity and equity represents a sea change that will not only impact the federal government but also lay the groundwork for an anticipated emphasis—including through government enforcement—on the private sector’s efforts to comply with relevant laws and regulations.

Discrimination/Racial Justice

  • Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation: This executive order reinforces the Supreme Court’s recent holding in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 extends to discrimination on the basis of sexual orientation or gender identity. The order commits to fully enforcing Title VII, Title IX, the Fair Housing Act, Section 412 of the Immigration and Nationality Act, and other laws that prohibit discrimination on the basis of gender, and to extending the coverage of those laws to discrimination on the basis of gender identity and sexual orientation. The order instructs each agency head to consider revising or rescinding agency actions that may be inconsistent with this policy.
  • Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government: This executive order revokes President Trump’s Executive Order 13950, which restricted diversity and inclusion training by federal agencies and contractors, and Executive Order 13958, which established the 1776 Commission, an advisory committee formed to promote “patriotic education” in public schools regarding the history of the American founding. The order further commits the federal government to affirmatively advance “equity, civil rights, racial justice, and equal opportunity.” The order emphasizes the Administration’s commitment to embedding equity throughout the federal government and directs the Domestic Policy Council to coordinate those efforts. The order directs each federal agency to undertake a review of agency equity, including whether underserved communities face systemic barriers to accessing benefits and opportunities in federal programs, and to deliver a report to the White House within 200 days. Within a year, each agency must also develop an action plan to address identified barriers. The order also establishes a “Data Working Group” that will study methods to measure and assess federal equity and diversity efforts and encourages agencies to consult with members of historically underrepresented communities.

Immigration

  • Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census: This executive order revokes Executive Order 13880 and the Presidential Memorandum of July 21, 2020, which set out the Trump Administration’s policy to exclude noncitizens from the census and apportionment of congressional representatives.
  • Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA): Created in 2012 by the Secretary of Homeland Security under President Obama, DACA deferred the removal of certain undocumented immigrants who were brought to the United States as children. Under the program, eligible immigrants who passed a background check were granted temporary work permits. The Trump Administration attempted to terminate DACA, but the Supreme Court intervened to prevent that effort. President Biden signed a presidential memorandum directing the Secretary of Homeland Security, in consultation with the Attorney General, to take all actions “to preserve and fortify DACA.”
  • Proclamation on Ending Discriminatory Bans on Entry to The United States: This proclamation ends the Trump Administration’s “Muslim ban” by repealing Executive Order 13870 and Proclamations 9645, 9723 and 9983, which restricted entry into the United States from certain majority-Muslim countries. The prprocloclamation instructs the Secretary of State to direct all embassies and consulates to resume visa processing for applicants in the affected countries and to develop a proposal within 45 days to remedy the harms caused by the bans, particularly for individuals stuck in the waiver process or whose immigrant visas were denied. Within 120 days, the Secretaries of State and Homeland Security, in consultation with the Director of National Intelligence, must provide the President with a report on current screening and vetting procedures for those seeking immigrant and nonimmigrant entry into the United States, information-sharing practices by foreign governments, and recommendations on how to improve upon both.
  • Revision of Civil Immigration Enforcement Policies and Priorities: President Biden signed an executive order revoking Executive Order 13768, which expanded initiatives to find and deport unauthorized immigrants, including by withholding federal funding for “sanctuary cities.”
  • Proclamation on the Termination of Emergency With Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction: This proclamation terminates President Trump’s Proclamation 9844, which declared a national emergency at the southern border and was used to justify funding construction of a border wall. President Biden’s proclamation directs the Secretaries of Defense and Homeland Security to assess the legality of funding the wall and consequences of ceasing construction. The proclamation also asks both Secretaries, in coordination with heads of other agencies and executive departments, to develop a plan to redirect funds diverted to fund the wall’s construction within 60 days.

Environmental Justice

  • Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis: President Biden signed an executive order that outlines a series of climate goals and directs federal agencies to review all regulations, orders and guidance promulgated, issued or adopted during the Trump Administration and consider revising or rescinding those that conflict with the outlined goals. The order’s enumerated goals include ensuring access to clean air and water; holding polluters accountable, including those who disproportionately harm communities of color and low-income communities; reducing greenhouse gas emissions; and prioritizing both environmental justice and the creation of well-paying union jobs necessary to deliver these goals.

Additional and Anticipated Actions

On January 21, 2021, President Biden signed a slate of executive orders addressing the COVID-19 pandemic, including orders to ensure equity in the government’s response to the pandemic and to address the impact of COVID-19 on educational outcomes along racial and socioeconomic lines.

In addition, following President Biden’s inauguration, the Director of the Centers for Disease Control and Prevention (CDC) announced that she had extended the federal moratorium on residential evictions until at least March 31, 2021, noting that the COVID-19 pandemic has “triggered a housing affordability crisis that disproportionately affects some communities.” The Department of Agriculture announced an extension of eviction and foreclosure moratoriums on USDA Single Family Housing Direct and Guaranteed loans through the same date. And the Department of Housing and Urban Affairs announced that it would extend its foreclosure and eviction moratorium on single-family mortgages issued by the Federal Housing Administration or guaranteed by the Office of Native American Programs through March 21, 2021. It is expected that President Biden will also request:

  • that Congress provide rental assistance and extend the foreclosure moratorium beyond the CDC’s current order;
  • that the Departments of Veterans Affairs consider extending foreclosure moratoriums for federally guaranteed mortgages and continuing applications for forbearance for federally guaranteed mortgages until at least March 31, 2021; and
  • that the Federal Housing Finance Agency extend the foreclosure moratorium past February 21, 2021, and continue forbearance applications for all loans guaranteed by Fannie Mae and Freddie Mac.

President Biden’s staff has indicated that additional executive actions will be forthcoming on advancing equity; supporting communities of color and other underserved communities; expanding access to health care, including for low-income women and women of color; and reuniting families separated at the border. It is expected that the President will issue additional administrative actions related to economic relief on Friday, January 22, and related to racial equity issues on Tuesday, January 26.

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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