The FAQS: President Biden’s Inaugural Proclamations and Executive Orders – Joe Carter

What just happened?

In a process that began on Inauguration Day and is expected to continue through February, President Biden has signed or scheduled numerous executive orders (EOs) and presidential proclamations, including many of particular interest to Christians.

What is an executive order?

An executive order is an official document, signed by the president, used to manage the Federal Government. Executive orders are generally directed to, and govern actions by, government officials and agencies. (A related action is the use of “presidential memorandum.” These are similar to EOs but executive orders must be published in the Federal Register, whereas presidential memoranda are published only if the president determines they have “general applicability and legal effect.”)

What is a presidential proclamation?

Presidential proclamations generally are official documents that affect the activities of private individuals.

Are executive orders and proclamations legally binding?

Assuming they’re limited to the scope of the executive action allowed by a president, an executive order has the power of federal law. While a president cannot directly create a new law or sign an executive order that violates existing law, he or she can use an executive order to specify how laws will be carried out or direct how a federal agency will carry out a task.

Similarly, presidents only have power or authority over individual citizens and their rights when such power and authority is given by a provision in the Constitution or by statute. Proclamations are only legally binding when based on such grants of authority.

By what authority can a president issue an executive order or proclamation?

As the Congressional Research Service notes, “The U.S. Constitution does not define these presidential instruments and does not explicitly vest the President with the authority to issue them. Nonetheless, such orders are accepted as an inherent aspect of presidential power.” Their authority is assumed to be derived from implementing the “Take Care Clause” (“The President] shall take Care that the Laws be faithfully executed . . .”) of Article II, Section 3.

The President’s ability to issue executive orders and proclamations is also derived from express or implied statutory authority from Congress. Unless it is constitutionally based, Congress may directly affect a presidential action by either amending, nullifying, repealing, revoking, or terminating the authority which serves as the basis of the president’s authority to issue such an order. [the double use of “authority” here is confusing]

How many executive orders have been issued?

Before Biden took office, presidents had issued 13,976 executive orders. Since the Hoover administration they’ve been numbered consecutively, so you can tell how many have been published by looking at the number of the latest one.

Where are executive orders found?

After they’re signed by the president, the text of the executive order is entered into the Federal Register. (You can find the text of all executive orders since the administration of President Clinton online).

Have presidents always used executive orders?

Yes. George Washington was the first president to sign and issue an executive order. The only president who did not issue an executive order was William Henry Harrison, who died 31 days after taking office.

Can an executive order be overturned?

Yes. The president is free to revoke, modify, or supersede his own orders or those issued by a predecessor. The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer also established the framework for determining whether an executive order is Constitutional.

What executive orders have been issued by President Biden?

EO on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation: Builds on the U.S. Supreme Court’s decision in Bostock v. Clayton County (2020) and ensures that the federal government interprets Title VII of the Civil Rights Act of 1964 as prohibiting workplace discrimination on the basis of sexual orientation and gender identity. This Order also directs agencies to take all lawful steps to ensure federal anti-discrimination statutes that cover sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity. [“cover . . . prohibit”? This sentence is hard to read]

EO on Ethic Commitments by Executive Branch Personnel: Establishes ethics standards for political appointees to “ensure that executive branch employees act in the interest of the American people and not for personal gain,” and requires federal employees to commit to upholding the independence of the Department of Justice.

EO on Diversity, Equity, Inclusion and Accessibility in the Federal Workforce: Rescinds the Trump EO banning diversity training and directs agencies to take action to advance “diversity, equity, inclusion, and accessibility” for “underserved communities,” including members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; and persons who live in rural areas.

EO on Protecting the Federal Workforce and Requiring Mask-Wearing: Directs Agencies to require mask wearing and other public-health practices for federal workers, in federal buildings, and on federal lands.

EO 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.

EO on the Revision of Civil Immigration Enforcement Policies and Priorities: Revokes a Trump Executive Order on immigration enforcement, and allows the Department of Homeland Security and other agencies to set civil immigration enforcement in line with the Biden Administration’s priorities.

EO on Revocation of Certain Executive Orders Concerning Federal Regulation: Revokes several Trump EOs to provide flexibility to the new Administration on issuing regulations.

EO on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census: Rescinds Trump EO and presidential memorandum on excluding non-citizens from the census.

EO on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis: Revokes or directs review of a series of Trump environmental actions, and revokes the Keystone XL permit that allowed construction and operation of pipeline facilities at the international border of the United States and Canada.

What proclamations have been issued by President Biden?

Memorandum on Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA): Directs the Department of Homeland Security and Department of Justice to take all actions they deem appropriate to preserve and fortify DACA, which defers the removal of certain undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military.

Proclamation on Ending Discriminatory Bans on Entry to The United States: In 2017, President Trump signed an EO banning foreign nationals, from seven predominantly Muslim countries, from visiting the country for 90 days; suspended entry to the country of all Syrian refugees indefinitely; and prohibited any other refugees from coming into the country for 120 days. This proclamation rescinds this policy—often referred to as the “Muslim Ban”—and directs State Department to restart visa processing.

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: Terminates national emergency and halts obligation of funds for wall construction; directs a pause in ongoing constriction as soon as possible but no later than within seven days

Reinstating Deferred Enforced Departure for Liberians: Reinstate deferred enforced departure and work authorization for Liberians (which expired January 10).

What executive actions and proclamations are scheduled for the near future?

From now through February, President Biden has vowed to issue proclamations, executive orders, and presidential memorandum (PM) on the following issues:

  • Rescinding ban on transgender service: Reverses the restrictions on military service by individuals who self-identify as transgender.
  • Rescind Mexico City Policy and Review Title X Domestic Gag Rule: Rescinds Mexico City Policy, which prohibits government funding of international organizations that promote abortion, and disavows the “Geneva Declaration,” a multilateral anti-abortion declaration signed by the Trump Administration.
  • Extending eviction and foreclosure moratoriums
  • Extending student loan forbearance
  • Refugee Policy EO (tent.): Establishes the principles that will guide the Administration’s implementation of the U.S. Refugee Admission Program (USRAP) and directs a series of actions to enhance USRAP’s capacity to fairly, efficiently, and securely process refugee applications.
  • Family Reunification Task Force EO: Creates task force to reunify families separated by the Trump Administration’s Immigration policies.
  • Legal Immigration EO: Directs immediate review of the Public Charge Rule and other actions to remove barriers and restore trust in the legal immigration system, including improving the naturalization process.
  • Forever Wars EO: Initiates a review of CT operations and options to responsible reduce such operations; reinstates transparency measures on civilian casualties; reinstates the policy of closing GTMO; initiates a process to migrate substantial use of force operations to Title 10.
  • LGBTQI+ Rights Abroad PM: Strengthens U.S. diplomatic efforts to “advance the human rights of LGBTQ + persons overseas.”
  • EO on Medicaid and the Affordable Care Act: Takes steps to strengthen Medicaid and initiate an open enrollment period under the ACA.
  • Rescinding of Trump EO on Immigration Enforcement
  • Removal Moratorium: This DHS Secretary memo directs a review of immigration enforcement policies, interim priorities, and a 100-day pause on most removals.
  • Regional Migration/Border Processing EO: Directs creation of strategies to address root causes of migration from Central America and expand opportunities for legal migration, while taking steps to restore the U.S. asylum system by rescinding numerous Trump Administration policies.
  • National Security Workforce & Talent EO: Directs agencies to recruit and retain employees to confront 21st-century challenges, including through re-skilling, professional development, and possible reserve corps to fill mission-critical gaps.
  • Whole of Government Racial Equality EO: Directs whole-of-government review of the “equitable destruction of USG programming and funding.”
  • Supply Chain EO: Directs review of COVID supply chain and lays groundwork for invoking Defense Production Act.
  • National Guard and FEMA EO: Reimburses states up to 100 percent for using National Guard to combat COVID-19.
  • Safe Travel EO: Directs agencies to implement public-health measures on certain public modes of transportation (airports, aircraft, trains, public maritime vessels, intercity buses, and all forms of public transportation); directs agencies to act within 14 days to require that any person who seeks to board a flight to the U.S. from foreign country is required to provide a proof of a recent negative COVID-19 test prior to departure.
  • Global Health PPD: Directs agencies to strengthen efforts to combat COVID-19 globally and strengthen global pandemic preparedness.
  • Testing/Workforce EO: Creates Pandemic Test Board and directs HHS to support states’ efforts to deploy public health personnel to combat COVID-19.
  • Data EO: Strengthens pandemic-related data collection and transparency.
  • Treatment EO: Directs actions to support research into novel COVID-19 treatment, secure an adequate supply, and promote equitable distribution.
  • Economic Relief EO: Directs agency action on Medicaid; Pell grants; SNAP; and unemployment insurance.
  • Federal Workforce EO: Restores collective bargaining rights to federal employees; initiates action to roll back Trump administration’s Schedule F EO.
  • Buy American EO: Directs agencies to strengthen requirements for procuring goods and services from sources that will support U.S. businesses and workers.
  • Policing Commission and Military Equipment Transfer EO: Creates policing commission and reinstates Obama-Biden policies governing the transfer of military-style equipment to local law enforcement.
  • Prisons EO: Direct DOJ to take steps to improve prison conditions and begin to eliminate the use of private prisons.
  • Tribal Consultations PM: Directs agencies to strengthen engagement with tribal governments.
  • Fair Housing PM: Directs HUD to take steps to promote equitable housing politics.
  • Xenophobia Against AAPI EO: Disavows discrimination against the AAPI community, particularly in light of rhetoric around the COVID-19 pandemic.
  • DOJ Prosecutorial and Sentencing Actions: Actions TBD.
  • Omnibus Domestic and International Climate EO: Initiates series of regulatory actions to combat climate change domestically and elevates climate change as a national security priority.
  • Scientific Integrity PM: Directs science and evidence based decision-making in federal agencies.
  • PCAST Executive Order: Re-establishes Presidential Council of Advisors on Science and Technology.

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