Joe Biden has launched his presidency with a flurry of executive orders, one of our least favorite methods of accomplishing federal action.
Many of the 40 executive orders signed by Biden during his first week — a record pace — have been aimed at overturning simular action taken by his predecessor, former President Donald Trump.
Therein lies a weakness of executive orders. What one president seeks to accomplish through that method can often be targeted easily by the next president, using the same method. Some of these policies, absent congressional action that have the force of law, are also prone to significant legal challenges. Along the way, the country can get whipsawed back and forth by head-spinning policy changes that provide job security for lawyers and bureaucrats but headaches for everyone else.
One of our key examples is the federal Roadless Rule, which then-President Bill Clinton directed by executive order on his way out of office in 2001. The incoming administration of President George W. Bush delayed implementation of the rule before exempting the Tongass National Forest in 2003 to settle a lawsuit brought by the State of Alaska.
Speaking of lawsuits, the Roadless Rule has prompted nearly non-stop legal fights for nearly two decades — with the most recent action filed by EarthJustice and the Natural Resources Defense Council in December to challenge the Trump adminstration’s action to exempt the Tongass National Forest from the Roadless Rule. Again, 20 years have passed without a reliable resolution to the Roadless Rule.
Alaska Rep. Don Young has long advocated for congressional action on the Roadless Rule, most recently pursuing an amendment to a 2018 farm bill that would give the Tongass exemption a solid legal standing.
On Thursday, Young announced that he had introduced legislation designed to block a president’s capacity to unilaterally create marine sanctuaries.
“I am proud to introduce the (Marine Access and State Transparency) Act, which will empower Congress — not the president — to make determinations relating to the designation of marine sanctuaries,” Young said in the prepared announcement. “This is not just about President Biden, but about future presidents as well. Expanding marine sanctuaries without proper engagement with local communities, business leaders, and Alaska Native entities could cripple industries and harm the families they support. No president should unilaterally close off even one square mile of land or ocean without first seeking approval from Congress.”
We appreciate the goal of Young’s legislation. And, although he targets Biden and former President Barack Obama as overusing executive action, presidential decrees have truly been a bipartisan endeavor.
Obama averaged 35 executive orders per year during his two terms in office, according to data compiled by The American Presidency Project at the University of California, Santa Barbara. Trump averaged 55 per year during his one term.
Other recent presidential averages were George W. Bush (36 per year), Bill Clinton (46), George H.W. Bush (42), Ronald Reagan (48), Jimmy Carter (80), Gerald Ford (69), Richard Nixon (62) and Lyndon Johnson (63), according to The American Presidency Project data.
The all-time record is held by Franklin D. Roosevelt, whose average of 307 per year over the course of his 12 years in office resulted in 3,721 executive orders.
But, as Yahoo News editor David Knowles points out, “Roosevelt’s most consequential initiatives, including Social Security and most New Deal programs, were enacted by legislation.”
That’s as it should be. Congress is a co-equal branch of government that shouldn’t relinquish so much policy-making authority to the executive branch. Although Congress’ requirement to reach at least a minimum majority level of support is more — often much more — difficult to obtain than one person’s signature, the actions that Congress approves have been vetted by the people’s representatives and become the law of the land.
We understand that the temptation for presidents to enact policy by the stroke of a pen is tremendous, especially when trying to undo the legacy of a disliked predecessor. And in some cases, an executive order is likely a good route. But Congress, as deadlocked as it can be, is often the best route.
We wish Rep. Young well with the MAST legislation, and encourage Congress to act.