Biden’s Executive Actions Just Scratch the Surface

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Larry MacDougal via AP

First100-012721

You won't see any of these on federal land anymore. Or rather you will, you just won't see any new leases. For a short period of time.

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The Chief

Today President Biden continues with the latest in a series of executive actions that have been pushed out non-stop since the first day of his presidency. The latest ones are focused on climate, and there are a couple big headlines. Biden will suspend new oil and gas leasing on federal land, building on a 60-day moratorium issued by the Department of the Interior on his first day in office. And he will require federal agencies to procure clean energy and zero-emission vehicles to green the federal government; that clean and greentech must be produced in America with prevailing-wage labor. There are a bunch more actions (an international climate summit on Earth Day, for example, and the establishment of a Civilian Climate Corps) but those are the big ones.

These combine with a suite of initiatives that have been rolled out over the past week. As a palate cleanser to get the taste of the Trump era out of our collective mouths, it’s a great start. It gives the impression of decisive forward motion. The PR value of devoting each day to a particular crisis has paid off. And what Biden is doing, even if it extends only to reversing Trump-era rules and actions, will help a lot of people. We shouldn’t forget that. 

That said, I do follow this stuff fairly closely. We’re in the midst of rolling out an update to the Day One Agenda that I think you’re all going to like, and I’m not going to ruin it here. But I can just say that, in a lot of ways on these executive actions, the style is doing a fair bit more than the substance.

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Let’s start with that oil and gas leasing issue. Of course it applies to new leases, not existing ones. Oil and gas companies stockpiled leases on federal land at the end of the Trump administration; the Biden order only applies to new leases, not new drilling and mining. And even this is a temporary moratorium. You could see leasing return, pending a review.

Just as a practical matter, federal lands are the site of only about 9 percent of U.S. onshore drilling. “This will not significantly impact the direction of the U.S. energy industry in the short term,” said the head of one climate nonprofit to HuffPost. There would certainly be ways to get at domestic production in total to reduce carbon burning; sanctioning companies responsible for methane and other pollution that leaks into the atmosphere through old wells would raise the cost of drilling, for example. Chuck Schumer has asked Biden to declare a climate emergency, which would enable him to direct resources to clean energy investment. Instead we got, as a first step, some procurement and a temporary moratorium on a tiny sliver of permitting. It’s just the beginning of scaling a high mountain.

Other executive actions are similarly less than meets the eye. Yesterday Biden ordered the Justice Department to allow existing federal contracts with the private prison industry to expire and not be renewed. By attrition, this will get private prisons out of the business of operating federal prisons. “This is a huge win,” said Rep. Ilhan Omar (D-MN). But federal private prisons are not a major part of the industry’s business model. Indeed, prisons aren’t really the main function of the private prison industry anymore.

Private prisons cover only about 8 percent of the prison population at the federal, state, and local level. Ending Justice Department contracts certainly sends a signal, but private prisons just don’t have that much of a footprint in domestic incarceration. They have an enormous footprint in immigration detention, where something like 72 percent of migrants under ICE’s control sleep in privatized detention beds, mostly managed by the two big private prison companies, CoreCivic and GEO Group. Yet the Biden order, like the Obama order from 2016 that it restores, only ends contracts between the Justice Department and the private prison industry, not the Department of Homeland Security. The latter would make an actual difference to the private prison business model, and make it extremely hard to detain immigrants in the near term. That road wasn’t taken.

It goes on from there. Biden’s action on fair housing was weirdly non-specific. He could have restored the Obama-era “Affirmatively Furthering Fair Housing” rule that the Trump Department of Housing and Urban Development repealed, but instead it directs HUD to “examine” the effects of that repeal and “take any necessary steps” to prevent housing discrimination. There were supposed to be policing actions in yesterday’s orders, which focused on racial equity, which didn’t make the final list, despite suggestions to advocacy groups that they would be included.

Now, just because I’m looking skeptically at some of Biden’s executive actions should not discount the importance of executive actions generally. This was a really dumb piece from the New York Times intimating that executive actions are just a sideshow to the real work of governing that can be overturned on a whim and have no real effect. Just because Trump based his presidency on fragile executive orders that could be reversed quickly doesn’t taint all potential executive actions that can really help people.

Congress passes the laws and presidents implement them. That's literally the job description of the president in Article II. Biden, for example, increased eligibility for nutrition assistance in a way that’s going to help a poor family getting another $100 a week in food. Trump used the 1930s-era Commodity Credit Corporation to compensate for his trade war and help farmers get through a tough stretch with billions in support. You can’t “roll that back,” as the money is out the door. You can’t “roll back” a $15 an hour minimum wage for federal contractors, as Biden is moving toward. They’ll just earn more. The next president could change that but only after four years of higher wages, which won’t be a popular move. And workers will have already banked the cash.

My point is this: Implementing laws already passed by Congress, with latent authorities that have real power and importance, is critical. This is the primary role of a president, not to devise a legislative agenda. And we should scrutinize these actions closely, not with the gloss that they’re just “executive orders” that will be overturned in the future. The cult of the presidency is debilitating, and part of it stems from viewing presidents as legislators. They are implementers. And they should implement to the maximum potential allowed by law.

What Day of Biden’s Presidency Is It?

Day 8.

Today I Learned

• I’ll have more on this tomorrow, but the Biden administration announcement on buying more vaccine is really just seeking to buy more. Not a done deal. (Washington Post)
• Meanwhile, Biden’s seen the first judicial roadblock of his presidency, an injunction against his 100-day moratorium on deportations. (Vox)
• In Gina Raimondo’s Commerce Secretary hearing, she pledged action on Section 230, the law that grants some legal immunity to tech platforms. (The Verge)
• Congressional Democrats are coming around to using budget reconciliation to get Biden’s COVID relief plans through. (Wall Street Journal)
• What’s budget reconciliation? Here’s a primer. (Slate)
• Mitch McConnell threatens that the Senate will “grind to a halt” if the filibuster is eliminated, as opposed to the well-oiled machine we have now. (Axios)
• New acting FCC chair Jessica Rosenworcel has made the digital divide a priority for years, which would help with remote learning. (The Intercept)
• The administration has restored relations with the Palestinians. (Washington Post)