In United States President Joe Biden’s first 100 days in office, he has initiated many policies and procedures through executive orders. These have addressed issues ranging from immigration to COVID-19. Although Biden is certainly not the first President to issue executive orders in his first 100 days, he has been criticised by both Democrats and Republicans alike for his perceived over-reliance on executive orders to create policies. This begs the average American to ask themselves: what even is an executive order and why are they so controversial?
Executive Orders Simplified
An executive order is one that can only be published by the sitting US President. While not legally binding, it is considered “instant law” because it does not require support from any individual other than the President in order to be signed. These orders cannot increase the President’s power but they allow the President to act on their existing powers unilaterally.
This ability to act unilaterally and without Congressional support is what makes executive orders controversial in US politics. The US Constitution does not define what an executive order includes, nor does it indicate the parameters in which it can be issued. Many legal and political scholars, such as Kenneth Mayer, argue that executive orders should only be executed when Congress has failed to respond to an issue. However, this is not a legal prerequisite.
Although only a sitting President can overturn an executive order, the legislative and judicial branches are not obligated to enforce them and thus can effectively override an order. Executive orders are not considered a form of US legislation because they are not issued by Congress. Therefore, there is no legal requirement for them to be implemented or followed. Moreover, Congress can pass legislation which makes it difficult or impossible for the order to be executed and the Supreme Court can overrule an executive order if it exceeds the President’s legal powers.
Past Use of Executive Orders
Executive orders are used less frequently today than they have been historically. In total, 13,731 executive orders have been issued by American Presidents and every President has issued at least one. Executive orders can be issued on any topic, such as cybersecurity, travel and migration, overseas crises, or COVID-19.
Data from Congressional ProQuest
Between 1905 and 1952, Presidents issued over 100 executive orders annually. However, only Jimmy Carter came close to this average after 1952 with 99 orders issued in 1980. Comparatively, Donald Trump issued roughly 44 executive orders per year of his term and Barack Obama issued about 27 executive orders per year across both of his terms.
President Biden’s Executive Orders
President Biden signed nine executive orders within hours of being sworn into office which is the most orders issued on a President’s first day in American history. In his first 100 days, Biden has signed a total of 64 executive orders. Similar to previous Presidents, Biden has used executive orders to reverse his predecessor’s policies; 24 of his 64 executive orders were direct reversals of Trump's policies related to immigration, COVID-19, military eligibility, and more. Although Biden began his presidency during the unprecedented COVID-19 pandemic, he has signed significantly more executive orders in his first 100 days than former Presidents Trump (39), Obama (34), and G.W. Bush (13).
Data from the White House, Federal Registrar
President Biden’s reliance on executive orders to initiate policy changes is concerning to individuals of all parties because it disregards the necessary process to pass legislation and make real changes in America. As Biden himself said in a 2020 October town hall, “you can’t legislate by executive action unless you are a dictator” - a sentiment that has been quoted by Republicans to condemn Biden's dependency on executive orders. Even Democrats and left-wing media outlets that were initially supportive of the use of executive orders have criticised Biden’s favour of unilateral action over working with elected Democrats because of its short-term, temporary nature.
When it is appropriate to issue an executive order instead of pursuing legislative action is unclear because the Constitution does not indicate what should be considered a valid use of an executive order. Nonetheless, executive orders can be beneficial because they allow a President to respond to a situation faster than Congress. This is imperative in critical situations such as COVID-19. President Biden first responded to the pandemic through executive orders that limited travel, set clear mask guidelines, and established healthcare procedures to implement a cohesive response to the pandemic. These orders allowed him to immediately respond to COVID-19 before later passing the American Rescue Plan and introducing the American Jobs Plan and American Families Plan, all of which aim to provide important government support and combat the social and economic devastation caused by the pandemic.
Moreover, executive orders can still influence the social and political conversations surrounding policy decisions if there is not universal implementation. This was recently seen following the order for a US$ 15 minimum wage and varied mask mandates.
Future presidents will undeniably use executive orders to accomplish policy goals regardless of Biden’s current criticism because they allow for immediate policy action and are the closest thing to unfettered power that a President possesses. Even though there are better alternatives to policy-making, executive orders are unlikely to be left in the past anytime soon.