Judges, many appointed by Trump, can stall much of Biden’s agenda

As the saying goes, what’s good for the goose is good for the gander. In political parlance, that would translate to, what restricts a Republican president restricts a Democratic president.

When President Donald Trump entered office, his party controlled both chambers of Congress, giving him significant freedom to roll out his agenda. President Joe Biden begins his term with a similar situation: Democrats took control of the House in 2018 and then the Senate after the January runoff elections in Georgia.

Even with control of Congress, Trump and Biden turned to executive orders (and memorandums, which are essentially EOs by another name) to kick-start their respective administrations, not waiting on the slow-moving legislative body to take action.

Trump passed executive orders on immigration, health care and infrastructure within his first week. That flurry of activity in Trump’s early days has been outpaced by Biden, who has already signed more than twenty executive orders related to the COVID-19 pandemic, the economy and lobbying, as well as others to repeal Trump’s agenda.

Many of Trump’s executive orders were challenged in the courts and were either temporarily halted or prevented altogether. Trump’s fourth executive order was a ban on immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, a controversial order known as the “Muslim ban.” Within days, lawsuits were filed and multiple federal judges had blocked the order on a variety of grounds.

The Trump administration was forced to rework the ban twice before it was finally allowed to stand by the Supreme Court in June 2018.

As the saying goes, what’s good for the goose is good for the gander. In political parlance, that would translate to, what restricts a Republican president restricts a Democratic president.

Just days into Biden’s administration, lawyers and federal judges have already acted to block some of his executive orders. With Biden looking to follow through on an ambitious and wide-ranging agenda within his first 100 days, his administration could be facing frequent judicial roadblocks.

That is especially true because Trump was responsible for appointing hundreds of federal district and appellate judges, as well as three Supreme Court justices.

What Biden executive orders have been blocked?

Presidents use executive orders and memorandums to affect short-term change and set their agendas, but they are ineffective for long-term policy because, as Biden has shown, a new administration can immediately overturn the orders of the previous administration.

One of Biden’s first executive orders was EO 13993: “Revision of Civil Immigration Enforcement Policies and Priorities.” Signed on his first day in office, it revoked EO 13768, which had been signed by Trump in his first week in office. Trump’s order financially punished communities that shielded undocumented immigrants, locales Trump deemed “sanctuary cities.”

However, the new administration is also seeing firsthand that, without the authority of Congressional backing, executive actions and memorandums are vulnerable to lawsuits and judges’ rulings.

On Biden’s first day in office, he authorized a Department of Homeland Security memorandum that put a 100-day freeze on deportations of most noncitizens in the country while the department’s policies were under review. The freeze was heralded by immigration advocates, but Texas Attorney General Ken Paxton was not celebrating: he sued to block the order the day it went into effect.

Days later, Judge Drew Tipton, who was appointed to the Southern District of Texas by Trump, blocked Biden’s order for two weeks. The judge cited the Administrative Procedure Act, which dictates how government agencies issue policies and regulations. Tipton also stated that the freeze represented a “threat of injury to Texas.”

Though the freeze on deportations has been halted, that doesn’t mean it will be permanently blocked or that it is illegal. Instead, the judge is requiring the Biden administration to “clarify” its order.

The Biden administration already has other legal challenges awaiting them. Among a range of orders aimed at combating climate change, the Biden administration is pausing new oil and natural gas leases on public land and water. That order was immediately met with a lawsuit from Western Energy Alliance, an energy company based in Denver, Colorado.

Citing a study that found the pause on new leases could cost US$33.5 billion and nearly 60,000 jobs a year, Western Energy Alliance’s lawsuit, filed in Wyoming, argues that Biden doesn’t have the authority to pause leases. The results of that lawsuit are still pending.

On January 27, the attorneys general of Arkansas, Indiana, Mississippi, Montana, Texas and West Virginia sent the Biden administration a letter warning the new president not to overstep his authority. If he did, they said, it would “be our responsibility to take action.”

The authority of Trump judges

When Trump’s executive orders were blocked by federal judges, he often criticized “liberal judges” as activists working toward a political end. For instance, when a judge in San Francisco initially blocked Trump’s executive order on sanctuary cities, his administration released a statement criticizing the “egregious overreach by a single, unelected district judge.”

Of course, no district court judges are elected. They are nominated by the president and confirmed by Congress. Trump appointed 174 of them, along with 54 appeals court judges and three of the nine sitting Supreme Court justices.

President Barack Obama, who served two terms, appointed 268 district court judges, 55 appeals court judges and two Supreme Court justices. The last single-term president before Trump was President George H.W. Bush, who appointed 148 district judges, 42 appellate judges and two Supreme Court justices.

As a result of Trump’s efficiency in appointing judges, with the help of former-Senate Majority Leader Mitch McConnell, Biden’s agenda will almost certainly face roadblocks from unelected “conservative judges.”

Unless there is a sudden rash of retirements, Biden will have far fewer opportunities to appoint judges than his predecessor did. There are currently only 49 vacancies in the federal court system, as opposed to the 117 vacancies that awaited Trump when he took office.

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