Congress used to pass laws. Now we're a nation of executive orders.
Recent history shows it's not a stable way to make policy.
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By Lisa Needham
Last week, the Senate passed a bill that would eliminate President Joe Biden’s student loan debt relief plan. Conservative Democrats Joe Manchin (D-WV) and Jon Tester (D-MT), along with Kyrsten Sinema (I-AZ), crossed the aisle and voted with the Republicans. The Republican majority in the House of Representatives, again joined by two conservative Democrats, Jared Golden (D-ME) and Marie Gluesenkamp Perez (D-WA), passed the bill a few days earlier.
Biden has already said he’ll veto it, but the problem is that the administration didn’t enact the plan by passing a law. Instead, it’s the product of accelerated rulemaking. In this case, the administration said that an existing law, the HEROES act, authorized the secretary of education to grant permanent debt relief because it has language saying the secretary can “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs.” So, the Department of Education issued a rule enacting permanent debt relief of up to $20,000.
Immediately, several states and two individuals sued, saying the secretary had no authority to enact the quick relief it did without going through the normal rulemaking process. That process can be lengthy and requires an executive agency to issue a notice of proposed rulemaking with the regulation the agency would like to pass. Then, the agency has to allow for a public comment period, at least 30 days, but more typically 60. During that time, the agency receives comments from any person or entity that wants to provide input. After all that, the agency must address all major concerns raised in the comments before issuing the rule, revising it, or scrapping it altogether. The public comment period alone can be incredibly contentious. When the FCC proposed a significant net neutrality rule change in 2017, it received literally millions of comments, 94 percent of which were basically spam.
Sometimes, that process can be waived when there’s a need for speed. For instance, many of the vaccine mandates issued during the covid-19 pandemic were enacted without the normal rulemaking timelines because people were dying. In the case of student debt relief, the administration said that the HEROES Act already gave the Secretary of Education the authority to enact debt relief, so the notice and comment period wasn’t required at all.
Why executive action isn’t an ideal way to implement policy
Had Congress passed a law creating student debt relief, it would be very difficult for the Supreme Court to overturn it, unless the court decided it violated the Constitution. A regulation, though, can be overturned by the federal courts if it fails to follow the procedures required. Additionally, the conservative majority on the Supreme Court has made clear it thinks federal agencies generally have too much regulatory power, and their questions during oral argument over student debt relief showed that they are likely to throw out Biden’s plan.
RELATED FROM PN: SCOTUS indulges weak arguments against student debt relief
This situation didn’t arise because the administration decided to be cavalier about getting student debt relief passed. Rather, things like this occur because Congress is structurally broken, unable to pass much legislation, thanks to the filibuster in the Senate and a GOP unwilling to compromise. Even during 2021-2022, when Democrats held both the Senate and the House, the administration couldn’t get a student debt deal done. Therefore, the administration was forced to find another way to keep a key campaign promise.
Just as presidents have to rely on sidestepping or shortening the rulemaking process, they also resort to another approach: the executive order, which doesn’t require the approval of Congress. Congress can’t overturn an executive order, but it can pass a law that makes the executive order impossible to follow. What’s more, subsequent presidents can revoke an executive order, and the courts can throw them out. All of this makes executive orders fragile, the statutory equivalent of a Chihuly sculpture in a toy shop.
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Sometimes, though, executive orders make sense for the same reason that emergency rulemaking does — because there’s an urgent situation. For example, one of Biden’s most recent executive orders sanctioned people behind the violence in Sudan, a country that faces immediate, deadly chaos. As with the pandemic, it would not be practical to try to move the entire machinery of Congress to issue sanctions when an executive order can accomplish the same goal almost immediately.
At other times, presidents issue executive orders because getting things done via Congress simply isn’t possible, either because of gridlock or because the president’s goals are directly in opposition to the majority of Congress. Presidents Bill Clinton, George W. Bush, and Barack Obama each issued well over 200 executive orders in their eight years in office, while Donald Trump issued 220 in just four years. As the presidency flips from party to party, presidents have been in a tug-of-war with each other, moving goals forward with executive orders, only to see those gains erased by the next president.
President Obama used executive actions when stymied by Congress, particularly regarding gun control. In the wake of Sandy Hook, where 20 children and six adults were murdered by Adam Lanza using an AR-15, Obama issued 23 executive orders addressing gun violence.
Unsurprisingly, Trump immediately started rolling back policies put in place by Obama. In his first year, Trump issued 17 executive actions to that effect, ranging from undercutting key portions of the Affordable Care Act to unwinding key climate goals. Trump was particularly aggressive in issuing executive orders regarding immigration, including the infamous “Muslim Ban,” which he issued only seven days after taking office.
Because of Trump’s executive action rampage, Biden faced a choice when he came into office. He could hope to garner enough support from Congress to quickly enact his policies, a wildly unlikely scenario, or he could move fast to undo the worst excesses of the Trump years.
Biden chose the latter, issuing a record 22 executive orders in his first week in office. One reversed Trump’s cynical and harmful 2020 census policies, which sought to exclude undocumented immigrants and decrease population counts in urban centers. He also immediately issued an order combating discrimination on the basis of gender or sexual orientation, a necessary correction after what the ACLU described as “four years of relentless attacks by the Trump administration on LGBTQ people in all aspects of life.” Another order issued that first week required all federal agencies to review Trump-era policies that undermined environmental justice. This year, he has issued orders advancing racial equity and requiring agency actions to address gun violence.
There’s no denying that all of these are good and necessary policies that fulfill the campaign promises that got Biden elected in the first place. But both accelerated rulemaking and executive orders are flimsy compared to laws, ready to be thrown out at the whims of the conservative federal courts or the next Republican president. It whiplashes Americans back and forth between the cruelty of GOP policies and Democratic goals of creating a more just country. Passing federal laws would enshrine the protections Biden is creating via these methods, but with this Congress, that’s unlikely to happen. Delicate as these protections are, they’re all we’ve got right now.
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