Dazed and Abused!

Biden's 100-Day Avalanche of Administrative Abuses

“You can’t legislate by executive order unless you’re a dictator.” – Joe Biden

It took Barack Obama seven years to go from “A president is not above the law” to “We’re not just going to be waiting for legislation … I’ve got a pen and I’ve got a phone.” Joe Biden did it in just three months. In October 2020, candidate Biden explained, “[Y]ou can’t [legislate] by executive order unless you’re a dictator.” Three months later, President Biden issued 29 executive actions within three days of taking office. Now, after 100 days, Biden has issued more than 100 executive orders, proclamations, memoranda, and other executive actions; a display of executive unilateralism that would make even President Obama blush. As of April 29, Biden had issued 41 executive orders, more than twice the number issued by either Obama (19) or Bush (11), and two-thirds more than Trump (25). Counting other unilateral executive actions, but excluding mostly symbolic actions like, say, declaring a National Agriculture Day, Biden issued 64 compared to 54, 41, and 20 for Trump, Obama, and Bush, respectively.

President Biden is on pace to issue more executive orders than all but one of his predecessors. Only FDR and Herbert Hoover had a higher yearly average, and if Biden were to get a second term and continue his current pace, he would surpass Hoover by a wide margin. It seems as though a fondness for court-packing and New Deals (green or otherwise) aren’t the only things Biden has in common with the 32nd President.

Although President Biden has issued a nearly unprecedented number of executive orders (42), even that number fails to capture the extent to which he has used administrative power to change the US law dramatically. A whopping 48% of Biden’s executive orders revoke one or more orders put in place by his predecessor. In all, Biden used his 42 executive orders to revoke 62 orders put in place by President Trump. In their first 100 days, Presidents Trump, Obama, and Bush each revoked only 12, nine, and five orders, respectively.

Why use one order to revoke multiple orders? One theory: to hide the enormity of the abuse of this process. The the numbers support this theory. Biden revoked an average of 3.3 prior orders for every order he issued, two to three times more than Trump (1.7), Obama (1.3), and Bush (1.0).

So What?

So, President Biden is getting things done! He’s off to a fast start! What’s the problem? Our answer: “How much time have you got?” Much has been written about the inherent instability and polarization that comes from rule by executive fiat – an indictment that also applies to Biden’s two most recent predecessors. It’s like the country is on a political roller coaster, with large areas of the law dramatically reversing polarity every four to eight years.

[Rule by executive order] bypasses the deliberation, compromise, and consensus-building that are inherent to legislating… Each new president now commences his term by signing orders to undo much of what his predecessor leaves behind. The fixation on executive orders contributes to a zero-sum mindset in American politics, with each party determined not merely to advance its political agenda but also to eradicate the agenda of the other party… Executive orders are canceled as easily as they were created. Shifts in policy prove ephemeral.

Michael Barone, author of The Almanac of American Politics

But That’s Just Politics, Right?

Wrong. NCLA doesn’t care about “politics.” Well, we do care about politics, so it might be more accurate to say that our mission transcends partisanship. As a non-partisan organization committed to fighting abuses of civil liberties by the Administrative State, we have filed more lawsuits against Republican administrations and officials than Democratic, by a large margin. (But, with a new party in power, hold our beer…) The overuse of executive orders to bypass the legislative process implicates a whole slew of constitutional issues that apply whether there is a (D) or (R) after someone’s name.

Understanding those issues means understanding that the U.S. Constitution was in many ways a reaction to the tyranny of an all-powerful monarch. Under Article II, the president’s authority to issue executive orders must come either from a power granted to him by the Constitution or by a law passed by Congress. The President can wield only the power he already has. He can’t give himself new powers, such as the legislative powers reserved to Congress in Article I of the Constitution. When the President exceeds his authority by legislating via executive action, he violates the fundamental system of checks and balances embedded in our constitutional form of government.

The true view of the Executive functions is, as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest . . ..

William Howard Taft, U.S. President (1909-1913)

I Am Not King!

The temptation of unchecked executive power is strong. Even former constitutional law professors can eventually give in to the temptation of unchecked unilateral executive action, even though they know darned well they shouldn’t. Just ask President Obama, who was correct in 2010 when he said of immigration reform, “I am president, I am not king. I can’t do these things just by myself.” He was right again in March 2011 when he said, “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” And again in May 2011, he could have been teaching a class on constitutional law when he explained “[I can’t] just bypass Congress and change the (immigration) law myself. … That’s not how a democracy works.” But the law professor lost out to the unitary executive and, in 2012, he went ahead and did it anyway. Whether or not you consider DACA to be good legislation is neither here nor there – it is legislation unlawfully handed down by the Executive Branch. That violates Article I of the Constitution.

“The framers of the Constitution were very clear about this. ‘All legislative Powers herein granted shall be vested in a Congress.’ That first word is crucial. The very first substantive word of the Constitution is ‘all.’ That makes it an exclusive vesting of the legislative powers in an elected legislature.“

Philip Hamburger, President of NCLA

Not only is President Biden on track to seize and use more administrative power than any president since FDR, but he seems just as serious about ignoring and bypassing the legislature. A president’s first 100 days normally see him with a groundswell of support that he can use to push important legislation in Congress. But not Biden. Biden has signed only 11 bills into law during his first 100 days. By comparison, Donald Trump signed 28 by this point in his presidency.

We still have the power of the Supreme Court to act as a check on the executive branch, right? … Right?! You … might want to sit down. In addition to snubbing the Legislative Branch, President Biden fired a warning shot across the bow of the Judicial Branch with his order on April 9 establishing the Presidential Commission on the Supreme Court of the United States. The purpose of the commission is obvious to those with eyes to see: to provide political cover for plans to engage in FDR-style court-packing, or else to hold the threat of such a move over the head of the Court like an Administrative Sword of Damocles.

Philip Hamburger is one constitutional law professor who still sees the danger inherent in unchecked executive authority. (Don’t let this man run for president, or he might be lured to the Dark Side!) In fact, Professor Hamburger founded NCLA to fight against unlawful abuses of administrative power.

When a president rules by executive fiat, Article I is hardly the only casualty. Many of these edicts also violate the Due Process Clause, the Commerce Clause, as well as other inalienable rights protected by the U.S. Constitution. Worse still, even the policies and actions that are not unconstitutional on their face are implemented by unelected, unaccountable regulators using processes that violate core civil liberties.

Consider just these three entries from the table of executive orders featured below: (1) the order stripping students and staff of due process safeguards in college Title IX proceedings; (2) the order extending the CDC’s unconstitutional moratorium on evictions; and (3) the order revoking half a dozen reforms from the previous administration that forced the Administrative State to be more accountable and more transparent. NCLA has sued the government on behalf of clients whose civil liberties were infringed by policies and processes at the heart of each of these executive orders.

Due Process Schmoo Process!

Biden ordered the Secretary of Education to issue new Title IX guidance to replace the rule, put in place by the previous administration, that required schools to use a “predictable, fair grievance process that provides due process protections” to alleged victims and alleged perpetrators of sexual harassment and sexual violence.

Unlimited Power!

Biden asked the CDC to extend its nationwide moratorium on evictions and foreclosures until at least March 31.

Next up: CDC declares ability to unilaterally raise taxes and repeal the Second Amendment, because, you know, COVID.

Transparency: It Was Good While It Lasted!

Biden revoked half a dozen executive orders from the previous administration that were all designed to reduce the cost and burden of regulation, while also increasing transparency and accountability in the regulatory process. For example, his order would overturn policies requiring enforcement agencies to share exculpatory evidence with their enforcement targets.

Abusive bureaucrats hated these soon-to-be-revoked restrictions on their ability to regulate. That’s how you know they were working.

Dazed & Abused: Biden’s 100-Day Avalanche of Administrative Abuses

Here is a sortable list you might want to bookmark! Use it as a light-hearted resource. We’ve listed every executive order, proclamation, and memorandum issued by President Biden prior to April 29, 2021, except for purely symbolic acts, such as memorializing a tragedy or recognizing a day, week, or month associated with an important cause (if we had included those, it would have put Biden alone among recent presidents with over 100 actions). The information comes from the the Federal Register and the American Presidency Project, but the catty commentary comes from our staff, supporters, and followers on social media. Obviously, not every executive order is problematic, but in the interest of speaking truth to power, we tried to find something snarky to say about each one. Enjoy!

Sort the table by clicking on the title of a column. Or use the advance filters to narrow down the results. You can also search for a word or number.

	Date		Type	Category	Reversal	Summary
wdt_ID	Date	Document No.	Type	Category	Reversal	Summary
1	January 20, 2021	2021-01866	Memo	Regulation	Yes	Back to the Future! Biden ordered the OMB to “modernize” the process of regulatory review by making sure the review process properly accounts for “equity” and other woke totems. Our favorite bit? The review process should “fully account for regulatory benefits that are difficult or impossible to quantify.” This loosey-goosey metric will enable approval of regulations that do not pass cost-benefit scrutiny. Indeed, it appears designed specifically for that purpose.
2	January 20, 2021	13992	Executive Order	Regulation	Yes	Transparency: Now You See It, Now You Don't! Biden revoked half a dozen executive orders from the previous administration that were all designed to reduce the cost and burden of regulation, while also increasing transparency and accountability in the regulatory process. For example, Biden's order tries to overturn policies requiring enforcement agencies to share exculpatory evidence with their enforcement targets. Abusive, power-hungry bureaucrats hated these soon-to-be-revoked restrictions on their ability to regulate. That’s how you know they were working. As for exculpatory evidence, why exactly does Biden think the government should not share evidence that cuts against someone’s guilt? Shameful.
3	January 20, 2021	10140	Proclamation	Misc.	No	Resistance! No Wait … Unity! Biden declared January 20, 2021 a “National Day of Unity.” Some members of the Resistance did not get the memo, as left-wing rioters attacked the offices of the Democratic Party in Portland carrying signs that read “We are ungovernable” and “A new world from the ashes.”
4	January 20, 2021	10141	Proclamation	Immigration	Yes	Ban the Bans! Biden rolled back the so-called Travel Ban, which had applied restrictions and increased vetting on travel from several countries where the U.S. lacked the ability to conduct vetting, including North Korea, Iran, Syria, and Venezuela. Critics had falsely labeled this the ‘Muslim’ travel ban. Fun fact: the only mosque in North Korea is in the Iranian embassy.
5	January 20, 2021	10142	Proclamation	Immigration	Yes	Walls Don’t Work, Except When They Do! Biden’s presidential proclamation declared an end to the emergency at the southern border and put an end to further construction of the border wall. Will the newly freed-up funding be reallocated to "Checkpoint Charlie," the newly renamed entrance in the barbed-wire-topped fence around the Capitol? The East Germans would be proud.
6	January 20, 2021	2021-01769	Memo	Immigration	No	Doubling Down on DACA! Biden ordered the “preservation” and “fortification” of DACA, which offers prosecutorial amnesty and worker permits to illegal immigrants who came to the US before age 18. Issued by Obama as a guidance memo, SCOTUS did not let Trump revoke it. Yet Congress has never voted to pass this amnesty law. Wonder why?
7	January 20, 2021	2021-01770	Memo	Immigration	No	Once a Legislator… Biden granted employment authorization to Liberian immigrants, thus writing into the law a provision Congress had left out. This program applies to refugees of a conflict that ended almost 20 years ago, which may be why Congress did not further extend those precious benefits. But, hey, who elected Congress?!
8	January 20, 2021	13986	Executive Order	Immigration	Yes	They Can’t Vote, but Let’s Count ‘Em Just in Case! Biden mandated the US Census to include illegal immigrants in its count. Previously, they were excluded. One main purpose of the decennial census is to apportion congressional representatives. Who get chosen in elections. In which illegal immigrants cannot participate. Hmmm.
9	January 20, 2021	13993	Executive Order	Immigration	Yes	Sanctuary Cities: Back on the Gravy Train! Biden’s executive order undoes the ban on federal grant money going to “sanctuary cities” that harbor people who are in the country unlawfully. Previously, cities had to choose between taking federal grant money and ignoring federal immigration laws passed by Congress. Biden says, “Why not both?”
10	January 20, 2021	13985	Executive Order	Identity Politics	Yes	Some Rights Are More Alienable Than Others! Biden disbanded the 1776 Commission and revoked a rule that had prohibited federal agencies and contractors from engaging in racial stereotyping or scapegoating. The 1776 Commission had just issued a report on the fundamental and inalienable rights guaranteed by the Constitution. But Biden apparently prefers racial stereotyping.

This version of the list has been modified to be readable on smaller screens. Use these links to print or download the larger version.

wdt_ID	Biden Executive Orders: First 100 Days
1	January 20, 2021 Document No. 2021-01866 Type: Memorandum Category: Regulation Reversal? Yes Back to the Future! Biden ordered the OMB to “modernize” the process of regulatory review by making sure the review process properly accounts for “equity” and other woke totems. Our favorite bit? The review process should “fully account for regulatory benefits that are difficult or impossible to quantify.” This loosey-goosey metric will enable approval of regulations that do not pass cost-benefit scrutiny. Indeed, it appears designed specifically for that purpose.
2	January 20, 2021 Document No. 13992 Type: Executive Order Category: Regulation Reversal? Yes Transparency: Now You See It, Now You Don't! Biden revoked half a dozen executive orders from the previous administration that were all designed to reduce the cost and burden of regulation, while also increasing transparency and accountability in the regulatory process. For example, Biden's order tries to overturn policies requiring enforcement agencies to share exculpatory evidence with their enforcement targets. Abusive, power-hungry bureaucrats hated these soon-to-be-revoked restrictions on their ability to regulate. That’s how you know they were working. As for exculpatory evidence, why exactly does Biden think the government should not share evidence that cuts against someone’s guilt? Shameful.
3	January 20, 2021 Document No. 10140 Type: Proclamation Category: Miscellaneous Reversal? No Resistance! No Wait … Unity! Biden declared January 20, 2021 a “National Day of Unity.” Some members of the Resistance did not get the memo, as left-wing rioters attacked the offices of the Democratic Party in Portland carrying signs that read “We are ungovernable” and “A new world from the ashes.”
4	January 20, 2021 Document No. 10141 Type: Proclamation Category: Immigration Reversal? Yes Ban the Bans! Biden rolled back the so-called Travel Ban, which had applied restrictions and increased vetting on travel from several countries where the U.S. lacked the ability to conduct vetting, including North Korea, Iran, Syria, and Venezuela. Critics had falsely labeled this the ‘Muslim’ travel ban. Fun fact: the only mosque in North Korea is in the Iranian embassy.
5	January 20, 2021 Document No. 10142 Type: Proclamation Category: Immigration Reversal? Yes Walls Don’t Work, Except When They Do! Biden’s presidential proclamation declared an end to the emergency at the southern border and put an end to further construction of the border wall. Will the newly freed-up funding be reallocated to "Checkpoint Charlie," the newly renamed entrance in the barbed-wire-topped fence around the Capitol? The East Germans would be proud.
6	January 20, 2021 Document No. 2021-01769 Type: Memorandum Category: Immigration Reversal? No Doubling Down on DACA! Biden ordered the “preservation” and “fortification” of DACA, which offers prosecutorial amnesty and worker permits to illegal immigrants who came to the US before age 18. Issued by Obama as a guidance memo, SCOTUS did not let Trump revoke it. Yet Congress has never voted to pass this amnesty law. Wonder why?
7	January 20, 2021 Document No. 2021-01770 Type: Memorandum Category: Immigration Reversal? No Once a Legislator… Biden granted employment authorization to Liberian immigrants, thus writing into the law a provision Congress had left out. This program applies to refugees of a conflict that ended almost 20 years ago, which may be why Congress did not further extend those precious benefits. But, hey, who elected Congress?!
8	January 20, 2021 Document No. 13986 Type: Executive Order Category: Immigration Reversal? Yes They Can’t Vote, but Let’s Count ‘Em Just in Case! Biden mandated the US Census to include illegal immigrants in its count. Previously, they were excluded. One main purpose of the decennial census is to apportion congressional representatives. Who get chosen in elections. In which illegal immigrants cannot participate. Hmmm.
9	January 20, 2021 Document No. 13993 Type: Executive Order Category: Immigration Reversal? Yes Sanctuary Cities: Back on the Gravy Train! Biden’s executive order undoes the ban on federal grant money going to “sanctuary cities” that harbor people who are in the country unlawfully. Previously, cities had to choose between taking federal grant money and ignoring federal immigration laws passed by Congress. Biden says, “Why not both?”
10	January 20, 2021 Document No. 13985 Type: Executive Order Category: Identity Politics Reversal? Yes Some Rights Are More Alienable Than Others! Biden disbanded the 1776 Commission and revoked a rule that had prohibited federal agencies and contractors from engaging in racial stereotyping or scapegoating. The 1776 Commission had just issued a report on the fundamental and inalienable rights guaranteed by the Constitution. But Biden apparently prefers racial stereotyping.

If you want to keep tracking executive orders beyond the first 100 days, try The American Presidency Project or Ballotpedia. For some historical information on executive orders and past presidents, try the National Archives.