Undoing Trump will take more than executive orders

Joe Biden has a plethora of pens as he signs multiple executive orders in the opening days of his presidency, orders that likely will be a mainstay of his administration in the months ahead. He should order those pens in bulk.

Biden is rejoining the Paris Climate Accord and the World Health Organization, getting more assistance to struggling families, terminating the ban on allowing Muslims from certain countries into the U.S., mandating a $15 minimum wage for federal workers and the wearing of masks on federal property during the pandemic, protecting some imperiled immigrants, freezing any spending on a wall along the Mexican border and initiating more COVID-19 protections.

Most of these are undoing executive actions taken by President Trump.

Biden also wants to cashier most all Trump appointees; in the final months, Trump duplicitously moved some political operatives into civil service protected jobs. The most notorious is Michael Ellis, an aide to the discredited former House Intelligence chair Devin Nunes, who was installed as the top lawyer at the super-sensitive National Security Agency over the objections of the agency’s director. There are others. It may be possible to fire some by executive action; most of the others might be transferred to a less sensitive post. Leon Panetta, the Democrats’ most prominent national security expert, suggests finding a place for Ellis in Alaska.

Over the longer run, however, the new administration — especially when agencies rewrite or draft new rules — may run into a judicial brick wall. Trump did with some of his early executive orders, which were carelessly crafted, failed to go through proper procedures, and often overreached.

The Biden problems likely will be more ideological.

Republicans successfully manipulated politics to forge a solidly pro-Republican High Court. Biden’s nomination of Merrick Garland as Attorney General is a painful reminder that he was denied a seat on the High Court in 2016 when Senate Republicans for nine months denied a vote. Subsequently, Trump filled that slot and one other — and then the Senate pushed through the nomination of Amy Coney Barrett in mere weeks.

The Republican majority justices on the Supreme Court usually embrace business interests on regulatory matters.

Some last-minute Trump actions may be hard to unwind, like letting out of contracts for oil and gas drilling or undoing the appointment of political hacks to various boards, most having little to do with policy.

The Biden transition team has had top lawyers working around the clock to draw up a list of executive actions and regulatory issues. They are carefully evaluating legal risk assessments given the conservative coloration of the judiciary. With the Trump team’s general refusal to engage in the customary cooperation during the transition, the problems may be deeper than expected.

The most important and controversial areas will be the environment, workers’ rights, financial regulation and immigration. These all are divisive issues with Republicans, and many affect powerful and deep-pocketed interests.

Even though candidate Biden talked often about taking executive actions and his chief of staff distributed a memo last weekend on the plans, the president spent 36 years in the Senate, and his instinct is legislative.

If legislative measures fail or are considered too tepid by the Democratic left, pressure will mount on the president to take more sweeping executive branch actions.

All matters, however, will come up against a solidly right-wing High Court. During the Obama years, Justices Samuel Alito and Clarence Thomas were disdainful of the president and most of his policies; they unsuccessfully sought to throw out the Affordable Health Care Act. Chief Justice John Roberts strikes a more measured approach — he was the key vote for the ACA —though he usually is a reliably pro-business vote.

The three Trump-appointed justices generally are in the Alito-Thomas mold. Neil Gorsuch has been a sharp critic of the so-called “Chevron deference,” which gives regulatory flexibility to interpret and enforce laws in this complex economy and not require narrow adherence to strict statutory language.

The newest Justice, Amy Barrett, hasn’t compiled much of a record on regulatory issues during a short stint on an appeals court — but her role model is the late Justice Antonin Scalia, for whom she clerked years ago, which would suggest she’ll usually side with business interests.

When Trump nominated Brett Kavanaugh to the High court, the White House put out a memo noting the scores of times Kavanaugh, as an appeals court judge, voted against regulations dealing with clean air and water and consumer protections. Before becoming judge, he was very active in “movement conservative” Republican circles.

This administration also will be tested on efforts to expand voting rights and curb voting suppression; these have become partisan issues, as Democrats try to expand the franchise.

Biden should expect everything to be challenged in court — which means everything this administration attempts will go before judges appointed by Trump and run through the Senate by a happily compliant Mitch McConnell (R-Ky.).