By Linda C. Ashar, J.D.
Associate Professor, Dr. Wallace E. Boston School of Business
On the very first day of his presidency, President Joseph R. Biden, Jr., issued several directives, styled as Proclamations, Executive Orders, or Memoranda, pursuant to the Executive powers under Article II of the Constitution. Most of these actions either reversed outright or suspended orders of the Trump administration. These directives were the first of many that President Biden has issued at the beginning of his presidency.
His first day’s orders, in particular, appear designed to emphasize the themes of his Inauguration Speech. All underscore the new President’s proclaimed resolve for a new path of unity and inclusion in America.
These are the Messages of the Presidential Actions of President Biden issued on January 20, 2021:
The theme of the President’s inaugural address was “unity,” a word repeated several times throughout his speech. To emphasize this message and set the stage for all that follow, Biden’s first action as President was to proclaim January 20, 2021, as a National Day of Unity.
The Proclamation Declaring a National Day of Unity “calls upon the people of our Nation to join together and write the next story of our democracy — an American story of decency and dignity, of love and of healing, and of greatness and of goodness.”
Rebuild and ‘Start Afresh’
Emphasizing that “unity is the path forward,” another point of the President’s speech was his belief that a step toward unity is the need to rebuild. “And so today, at this time and in this place, let us start afresh.”
The next Presidential directive immediately set this resolve in motion. The Memorandum, Regulatory Freeze Pending Review, directs all executive offices and regulatory agencies to put a hold on all rules and regulations as follows:
- No new rules can be proposed or issued unless directly approved by the President;
- Pending rules that have been sent to the Federal Register but not yet published in it shall be withdrawn;
- Rules published in the Federal Register that have not yet taken effect are stayed for 60 days for a factual and legal review;
- Emergency needs are excluded from this directive and other exceptions can apply, meaning the various departments can make the determination of where exceptions to this 60-day stay might be needed and recommend them.
Racial Justice and Equity
The Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, was forecast in the President’s inaugural remarks about the “sting of systemic racism” and “growing inequity.” Biden stated, “A cry for racial justice some 400 years in the making moves us. The dream of justice for all will be deferred no longer.”
This directive expressly revokes his predecessor’s Executive Order 13950 of September 22, 2020, which prohibited federal agencies and government contractors from providing employment training about discrimination, inclusion, diversity, equal opportunity practices, and the like.
President Biden’s new order not only nullifies that order but establishes a much broader plan to implement a policy of federal inclusion across the board. The rationale, grounded in economics as well as social welfare and Constitutional law, states:
“By advancing equity across the Federal Government, we can create opportunities for the improvement of communities that have been historically underserved, which benefits everyone. For example, an analysis shows that closing racial gaps in wages, housing credit, lending opportunities, and access to higher education would amount to an additional $5 trillion in gross domestic product in the American economy over the next 5 years.”
Measures to Combat COVID-19
Several of the first-day directives refer to the pandemic in some fashion. Two of the immediate orders speak directly to the COVID-19 crisis, a key topic in Biden’s Inaugural Address: “A once-in-a-century virus silently stalks the country.” The Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing acknowledges the national COVID-19 pandemic and states the new policy of mask-wearing and other precautions in the federal government as follows:
“Accordingly, to protect the Federal workforce and individuals interacting with the Federal workforce, and to ensure the continuity of Government services and activities, on-duty or on-site Federal employees, on-site Federal contractors, and other individuals in Federal buildings and on Federal lands should all wear masks, maintain physical distance, and adhere to other public health measures, as provided in CDC guidelines.”
The order spells out procedures for implementation and enforcement, including recognition of individual instances when exceptions might be necessary. Further, this order establishes the Safer Federal Workforce Task Force, which shall “provide ongoing guidance to heads of agencies on the operation of the Federal Government, the safety of its employees, and the continuity of Government functions during the COVID-19 pandemic.”
A companion to the above directive is the President’s Executive Order on Organizing and Mobilizing the United States Government to Provide a Unified and Effective Response to Combat COVID-19 and to Provide United States Leadership on Global Health and Security.
This order “creates the position of Coordinator of the COVID-19 Response and Counselor to the President and takes other steps to organize the White House and activities of the Federal Government to combat COVID-19 and prepare for future biological and pandemic threats.”
What is clear from the content of these orders is the President’s mandate that the COVID-19 pandemic be aggressively addressed by the White House and the federal government, and that measures and recommendations pertaining to COVID-19 will be based on science.
‘A Beacon to the World’ – Immigration, Status, and Entry to the U.S.
Another theme throughout President Biden’s Inaugural Address was the country’s historic legacy embodied in such words as tolerance. This is a message to “those beyond our borders.” To the world, the President stated, “We will repair our alliances and engage with the world once again.” His Proclamation on Ending Discriminatory Bans on Entry to The United States punctuates this message with substance. Alliances cannot be repaired while people are persona non grata purely based on religion, nationality, or ethnicity.
This directive expressly revokes President Trump’s Executive Order 13780, and Proclamations 9645, 9723, and 9983, stating:
“Beyond contravening our values, these Executive Orders and Proclamations [of the previous administration] have undermined our national security. They have jeopardized our global network of alliances and partnerships and are a moral blight that has dulled the power of our example the world over. And they have separated loved ones, inflicting pain that will ripple for years to come. They are just plain wrong.”
The directive further provides for a review of previously denied and pending visas and waiver applications, and for improved “screening and vetting activities, including diplomatic efforts to improve international information-sharing, use of foreign assistance funds, where appropriate, to support capacity building for information-sharing and identity-management practices.”
Furthering the new administration’s policy on fair management of immigration, inclusion, and dignity, is the Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities, expressly revoking President Trump’s Executive Order 13768 of January 25, 2017. The Trump order so broadly defined and expanded immigration enforcement measures, that the American Immigration Council described it as having “devastating consequences for immigrant communities and will undermine, rather than improve, public safety.”
Ensuring there will be no confusion about the new administration’s policy in this regard, President Biden also directed Memorandum, Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) to the Attorney General and Secretary of Homeland Security. This is not a “new” action, but rather underscores the DACA order issued during the Obama administration. The “childhood arrivals” are those brought to the U.S. as children of illegals, through no fault of their own. The Biden Memorandum affirms that those undocumented children who “have obeyed the law and stayed in school or enlisted in the military” and “pass a background check” can request temporary relief from removal and apply for temporary work permits.
In keeping with the overall message of the Biden administration’s immigration policy, all work on the so-called Trump Wall across the U.S. southern border with Mexico is suspended, and the emergency order issued to justify it is reversed pursuant to President Biden’s 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. Acknowledging that “the United States has a right and a duty to secure its borders and protect its people against threats,” President Biden has proclaimed the “massive wall” is “not a serious policy solution,” and is “a waste of money.”
Another January 20, 2021, directive on immigration extends relief expressly for Liberians, to fix a legal bottleneck. Memorandum, Reinstating Deferred Enforced Departure for Liberians extends the deadline to apply for permanent status to June 20, 2022. During President George W. Bush’s administration, Liberian immigrants in the U.S. were given deferred departure status, which was later extended, including most recently by President Trump and Congress. Liberians on deferred departure status could apply for permanent status by January 21, 2021, but difficulties in the government’s processing and questions of whether their authorization to work was also extended last year, caused confusion. To reduce the red tape and encourage eligible Liberians to apply, President Biden’s Memorandum resets the process and extends the deadline, stating this directive: “honors the historic close relationship between the United States and Liberia and is in the foreign policy interests of the United States.”
Finally, an issue relating to immigration status arose under the Trump administration regarding the U.S. Census. Contrary to longstanding application of law and previous censuses, all persons were counted in residences regardless of “immigration” status, by terms of the U.S. Constitution. This is to determine apportionment for the 435 seats in the House of Representatives. The purpose is to count all people, not just persons eligible to vote. The Trump administration changed this for the 2020 Census to exclude persons not legally in the country. President Biden’s Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census has reversed that exclusion and clarified that “all persons” means just that.
Inclusion, Dignity, Respect – Gender Nondiscrimination
In his address, President Biden reminded us: “Our history has been a constant struggle between the American ideal that we are all created equal and the harsh, ugly reality that racism, nativism, fear, and demonization have long torn us apart.” This weighed on his mind throughout. The words “respect” and “dignity” were heard as often as “unity” in the Inaugural Address.
And so, President Biden opens Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation with this statement: “Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.” The order references the Supreme Court’s Bostock case, Title VII, and other federal laws prohibiting gender discrimination, and directs every federal agency to review, revise and enact new procedures, as necessary, to ensure nondiscrimination and to implement measures (such as training and review) to comply with the law.
Planet and Climate
In his Inaugural Address, President Biden spoke of the “climate in crisis.” Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis is one of the more complex of his initial directives. The highlights of this order are:
- Immediate review of federal agency actions taken between January 20, 2017, and January 20, 2021. The intent is to roll back those regulations inconsistent with clean air, clean water, habitat protection, wildlife protection, and other such concerns protected by law and prior regulations.
- Restore National Monuments to their former state as of January 20, 2017, as needed.
- Arctic Refuge: a temporary moratorium on the Coastal Plain Oil and Gas Leasing Program, and a new environmental impact study must be completed before anything can be done in the Arctic National Wildlife Refuge.
- Withdrawal of Bering Sea waters from oil drilling (reinstating Executive Order 13754 and the Presidential Memorandum of December 20, 2016, which preceded the Trump administration).
- Interagency Working Group on the Social Cost of Greenhouse Gases established.
- March 2019 Permit for the Keystone XL Pipeline is revoked.
- Long list of Trump orders and actions revoked.
In his Inaugural Address the President spoke of “lies told for power and for profit,” and of “leaders who have pledged to honor our Constitution and protect our nation – to defend the truth and defeat the lies.” To enforce a commitment to ethics in his administration, his Executive Order on Ethics Commitments by Executive Branch Personnel requires every “appointee in every executive agency” to sign a detailed, well-defined, extensive ethics pledge, which emphasizes, among many things, avoiding conflicts of interest.
‘The Path Forward’
President Biden made several references to the future with such phrases as starting “anew” and “the path forward.” In his Inaugural Address he touched on several crucial challenges which were the subject of his first official actions. In these directives he tasks the executive agencies with a lot of work: Reviewing regulations, conducting studies, revising and enacting regulations. Achieving anything quickly within the huge sprawling bureaucracy that is the federal government sounds impossible. To tackle this, the President issued Memorandum, Modernizing Regulatory Review.
This directive tasks the agencies with coming up with a better way to operate the regulatory process. The Memorandum explains in language directly from of the Inaugural Address:
“Our Nation today faces serious challenges, including a massive global pandemic; a major economic downturn; systemic racial inequality; and the undeniable reality and accelerating threat of climate change. It is the policy of my Administration to mobilize the power of the Federal Government to rebuild our Nation and address these and other challenges. As we do so, it is important that we evaluate the processes and principles that govern regulatory review to ensure swift and effective Federal action.”
Along with this directive is the Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation which revokes enumerated Executive Orders of the Trump administration relating to regulatory review and action. The idea is to avoid any potential confusion for the agencies in carrying out the new administration’s policies and directives.
The January 20, 2021, Presidential actions align forcefully with the messages conveyed in the President’s Inaugural Address: A new path begun. Since then Presidential orders have continued to emerge daily from the White House.