Biden Should Use Executive Action All He Wants

Don’t listen to the whiners. The founders wanted a strong executive.

Just weeks into his presidency, it is clear that Joe Biden is willing to use executive action both to reverse the Trump administration’s policies and to implement his own policy goals. Already he has reversed President Trump’s transgender military ban, expanded access to food assistance, directed the Attorney General not to renew contracts with private prisons, and placed a temporary pause on oil and natural gas leasing activities in the Arctic National Wildlife Refuge — to name just a few of the actions he has taken by executive action. And already some, like The New York Times editorial board, are saying that he should “ease up” and look to legislation—not executive action—to advance his policy goals. The implication is that executive actions are too ephemeral and easily reversed—a weak substitute for the hard work of passing laws. But there’s a major problem with this view: legislative action and executive action are not mutually exclusive. In fact, executive action is often essential to accomplishing the goals set out in legislation. It’s fundamental to our system of government, and President Biden should not hesitate to use it.

The idea that the executive branch would sometimes need to make discretionary determinations about how best to implement the laws passed by Congress should not be controversial. Indeed, the belief that the nation would need an energetic executive to enforce the law goes back to the founding. As our nation’s Founding Fathers gathered in Philadelphia in 1787 to write a Constitution, they recognized that a major problem with the Articles of Confederation was the absence of an independent executive capable of effectively enforcing the nation’s laws.

These experiences under the Articles of Confederation fundamentally reshaped the way the nation’s leaders thought about executive power. While British rule had taught them the dangers of an absolute monarch, the Articles of Confederation taught them not to veer too far in the other direction. As Steven Calabresi and Christopher Yoo have put it: “the general antipathy toward executive power that dominated the post-1776 period immediately following independence had given way to a 1787 consensus in favor of an executive that was far more independent and energetic.” David Fontana has made the same point: “Scholars writing about the creation of the American presidency at the Constitutional Convention have generally agreed that earlier failures of executive power in state constitutions and under the Articles of Confederation meant that the founders wanted to create an executive stronger than the one that existed under the Articles of Confederation regime.” Indeed, the nation’s experiences under the Articles of Confederation were what prompted Alexander Hamilton to write that “all men of sense will agree in the necessity of an energetic Executive.”

To ensure that the new nation would have an “energetic Executive,” the Constitution that the Framers wrote, and that “We the People” then ratified, vested “executive Power” in an independent president. The Constitution gave this new energetic president the responsibility to “take care that the laws be faithfully executed,” a responsibility that the Supreme Court has long recognized is “essentially a grant of the power to execute the laws.” To aid the president in fulfilling his or her responsibility to execute the nation’s laws, the Constitution expressly recognized that there would be subordinate executive branch officers who would aid the President in executing the nation’s laws. As the Supreme Court has also recognized, “the President, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates.”

Thus, the existence of an energetic executive was a fundamental part of the Framers’ design, and the executive branch exercises this power in multiple ways. One long-standing manifestation of this “power to execute the laws” is the power to determine how laws can best be implemented within the limits set by Congress. At times, this means promulgating regulations or taking other administrative action to effectuate the goals and policies set out in statute. Indeed, precisely because it may be difficult to predict in advance all of the specific problems that legislation must address or determine in advance exactly how best to address those problems, Congress has long recognized that administrative agencies can bring both expertise and flexibility to policymaking and has delegated authority to expert agencies to determine how best to effectuate the broad goals set out in statutes.

Consider, for example, the Clean Air Act. When Congress passed that landmark legislation in 1963 and then amended it in the years that followed, it did not attempt to prescribe every detail about how air pollution should be addressed until Congress next legislated the issue. Instead, it drafted the law to give the Environmental Protection Agency, the agency with expertise, the authority to determine how best to address problems and the flexibility to address new problems that might arise. In this context and in many others, executive action may not be as enduring as the legislation Congress passes, but it is often essential for the legislation Congress has passed to be effective in the long term.

At times, the executive branch must determine how to enforce particular laws in light of the nation’s resources and enforcement priorities. As the Supreme Court recognized in Heckler v. Chaney, it “has long been regarded as the special province of the Executive Branch” to determine how best to enforce the law because “it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully executed.’” To be sure, there are limits on the executive branch’s discretion; in determining how to enforce the law, the executive branch cannot “‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” But there will be many exercises of prosecutorial discretion that do not cross that line.

President Obama’s Deferred Action for Childhood Arrivals (DACA) policy, which authorized the temporary deferred removal of certain young people who were brought to the United States as children, was one such exercise of executive discretion. Congress had long conferred significant discretion on the executive to determine how best to enforce the nation’s immigration laws, and with good reason: given the number of undocumented immigrants and the resources available to enforce our immigration laws, the government has to make decisions about how to prioritize enforcement of the nation’s immigration laws. Put simply, executive action allows the laws Congress passes to work.

To be sure, many progressives criticized President Trump for executive actions he took across a wide range of issue areas (disclosure: my organization, the Constitutional Accountability Center, was involved in many lawsuits challenging Trump-era executive actions), but it was not because there was anything inherently problematic with executive action. It was because, all too often, the actions taken during his time in office did not implement the laws passed by Congress, but instead transgressed them or the Constitution. Consider, for example, the transgender military ban that President Biden recently reversed. That ban was unconstitutional, violating the Fifth Amendment’s guarantee of equal protection for all.

President Biden must ensure that any executive action he takes is consistent with the laws passed by Congress and with the Constitution. But within those parameters, he should not hesitate to use executive action to advance his policy goals. Indeed, effective governance demands it.

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Brianne Gorod

Brianne Gorod is chief counsel at the Constitutional Accountability Center, a non-profit law firm, think tank, and advocacy center dedicated to the progressive promise of the Constitution's text and history.