Why Revoking Trump’s Executive Orders Isn’t Enough To Undo Their Effects

During the 2016 presidential campaign, Donald Trump was incredibly critical of executive orders, particularly when it came to then-President Barack Obama’s use of them. “[Obama] just goes along and signs executive orders for everything … because that’s easy to do,” Trump told a crowd of supporters in 2016, going on to indicate that were he elected, he’d work to dismantle Obama’s executive orders. “I’ll tell you, the one good thing about an executive order is that the new president [can] come and with just a signature, they’re all gone.”

And while Trump did overturn a lot of Obama’s executive orders, he also passed a lot of his own. In fact, Trump significantly outpaced his recent predecessors, averaging 55 executive orders a year, compared with Obama’s 35, George W. Bush’s 36, Bill Clinton’s 46 and George H.W. Bush’s 42 orders, according to the American Presidency Project at University of California, Santa Barbara.

More executive orders doesn’t always mean more active policymaking from the Oval Office, though. Historically, presidents have used executive orders for largely administrative purposes, like forming task forces or requesting reports. That said, presidents have also used executive orders to push through weightier policymaking and enforcement instructions, and as research by University of Chicago political scientist William G. Howell shows, these types of orders are becoming more common. Modern presidents have issued almost four times as many “significant” executive orders as presidents serving in the first half of the 20th century according to Howell’s analysis, and many of Trump’s executive orders, especially on immigration and the environment, fall into this category. As a result, undoing these orders could prove difficult — logistically and even legally — for President Biden, and many of the outcomes of Trump’s executive orders may persist, even if Biden revokes the orders (something he is already busy doing).

Who undoes whom?

Since assuming office on Jan. 20, Biden has revoked 31 of Trump’s 220 executive orders, or 14 percent, with his own batch of executive orders, according to our analysis of data collected by the American Presidency Project. And as you can see in the chart below, Biden is working at a much faster pace than other modern presidents to overturn his predecessor’s legacy.

Biden’s revocation path has been both orderly in that it selectively targets some of Trump’s most controversial executive orders and scorched-earth in that it weeds out toothless orders like the one to construct a border wall, which could not be implemented without congressional appropriations, or the one to create the 1776 Commission to promote a “patriotic education” in America’s schools, which was largely an amped-up press release meant to appeal to his conservative base.

And while it might seem unnewsworthy that a Democratic president is undoing the executive orders of an outgoing Republican president, it isn’t. Although incoming presidents tend to target the executive actions of their predecessor, especially when their predecessor is from the other party, it’s not a given. Presidents are ultimately in the business of accumulating power, so if an executive order from a previous president strengthens an incoming president’s influence, he will be more likely to keep it than revoke it. “Presidents often have their own partisan and ideological motivations, but they also have institutional ones,” said Vanderbilt University political scientist Sharece Thrower, who studies revocations. “If something gives presidents power, they’d generally like to hold on to it.” Because of this, incoming presidents often leave outgoing presidents’ executive orders alone.

However, Trump was pretty unpopular when he left office, which is one reason why Biden might feel empowered to overturn so many of his predecessor’s policies. It’s just not that risky politically. Thrower found in her research that executive orders with a longer lifespan tend to be issued by popular presidents. These orders are generally not that controversial, legally speaking, either. Rather, they are consistent with existing laws already passed by Congress or in line with the president’s perceived constitutional authority. Thrower also found that the orders that survive administrations tend to be more ideologically moderate.

This all points to another explanation for why so many of Trump’s executive orders are on the chopping block: Many of them were legally dubious, as evidenced by the ongoing challenges his orders still face in the courts. And his executive orders weren’t politically moderate, either. Take his executive order that created the 1776 Commission. Or the executive order that sought to combat “anti-American” diversity training for federal employees and service members. Both were divisive, ideological orders meant to appease Trump’s base. And neither order extended the executive branch’s power.

It makes sense, then, that these types of orders were among some of the first Biden revoked, but not all of Biden’s revocations will be so straightforward.

Momentum

Executive orders may seem like evidence of an “imperial presidency,” but the fact is that they typically undergo extensive vetting and review, including from the Office of Management and Budget, before they reach the president’s desk.

Bowdoin College political scientist Andrew Rudalevige told me that this process “is designed to make sure there is essentially peer review [of the orders], and frankly, to protect the president from blowback.” So, that means the orders that you and I see — the ones the president actually signs — have usually already been shaped to withstand legal challenges and political pushback, which, in turn, sets the order up for success. Moreover, the agencies know what is coming and can implement the president’s agenda quickly, and any legal challenges the order may face will be narrower.

So, by the time a revocation comes along, that “doesn’t just automatically flip the switch,” says Rudalevige. These orders are usually legally and politically sound. Plus, “agencies get moving in a certain direction,” Rudalevige told me. Once an agency moves in that direction — updating standard operating procedures and perhaps even agency culture — it can be difficult to reverse course.

Take Trump’s executive orders on immigration. Michele Waslin, the program coordinator at George Mason University’s Institute for Immigration Research who has studied Trump’s executive actions on immigration, notes a pretty big cultural shift during Trump’s term, which makes dismantling his orders especially difficult. “Under the Trump administration, everything was set up to restrict immigration, to see immigrants as a problem, to see them as a threat,” she said. This had an effect even on legal immigration. Waslin described it as a “slow-walking” effect, meaning that Trump’s executive orders treating illegal migration as a threat likely spilled over to how legal migration was handled, too. “You can significantly slow legal migration to the United States by personnel practices and the guidance that they are given,” Waslin said.

That means it might not be enough for Biden to simply revoke Trump’s orders to enhance the vetting and screening of immigrants and refugees or to ban travel from certain countries. For the Biden administration to really reverse course on issues broadly related to immigration, relevant agencies will “need to be significantly built back up, or reconstituted,” Waslin told me.

This illustrates both the upside and downside of executive orders. They give presidents the capacity to act first and quickly, forcing the other branches of government to respond if they object — but they can be difficult to undo, as the executive branch and its agencies are already moving forward in the meantime.

This is why the other branches of government typically do nothing in response to executive orders. On the one hand, Congress is largely hamstrung. Any bill it puts forward to nullify a president’s order would have to withstand a presidential veto. The courts, on the other hand, have been a more formidable counterweight to the executive branch, striking down various executive orders throughout history that clearly violate constitution or statutory authority. But they still tend to side with the executive branch more often than not.

That leaves an incoming administration as the most suitable adversary in undoing a president’s executive orders. That doesn’t mean it’s easy, though. As Rudalevige explained, some of these orders “do have some staying power” and become quickly entrenched in government and bureaucracy. Nevertheless, presidents will still try to overturn them, which is one reason why so much of the policymaking in the United States is destined to ping-pong back and forth from administration to administration.