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Washington University in St. Louis

WashU Expert: Executive orders come ‘at great cost’

President Joe Biden was expected to announce his administration’s first actions addressing gun violence April 8. He also is facing mounting pressure to cancel student debt via executive action. White House chief of staff, Ron Klain, said the president is looking into his “legal authority” to cancel student-loan debt up to $50,000.

Biden has previously called on Congress to pass legislation on both issues, but partisanship and differences over the filibuster issue have bogged down any such actions.

Like other modern presidents, executive orders may be the only path forward for Biden to deliver on his policy agenda, however these powers come at a great cost, according to Andrew Reeves, associate professor of political science in Arts & Sciences at Washington University in St. Louis.

“I think it’s an underemphasized point. Biden is being more conservative on the student loan issue than many of his Democratic colleagues. This is partly reflected in that he doesn’t want to claim some of the powers that many of his fellow Democrats in Congress say he has. We think of presidents as wanting to have more and more power, but it’s not that simple. Those powers come at great cost,” Reeves said.

Reeves is the co-author of a forthcoming book on the topic, “No Blank Check: Why the Public Dislikes Presidential Power and What It Means for Governing” with Jon C. Rogowski of Harvard.

“The central argument in our book is that voters actually don’t like executive power,” Reeves said. “It’s not like this purely partisan world where if you like Biden, you’re willing to let him to do whatever he needs to do to accomplish these goals that you might support. In fact, Americans have a very deep antipathy toward executive power.”

Reeves has studied voter response to the exercise of unilateral powers. In one survey, some respondents were given a scenario in which the presidential candidate wants to accomplish political goals with legislation. Other respondents were given the same scenario, but were told the candidate wanted to use executive action to accomplish the goal. They consistently found much lower support for unilateral action. Interestingly, the costs of unilateral action were largest among respondents whose preferences aligned with the policy outcomes. 

Until now, most of Biden’s executive orders have been undoing things Trump did through executive order, like rejoining the Paris Climate Agreement. Likewise, many of Trump’s early executive orders were undoing Obama’s unilateral executive agenda, Reeves said.

There are practical reasons why Biden would prefer to work with Congress, even if it means compromising to push bills through. For starters, a law is much more durable than an executive order. Unilateral actions are necessarily limited in scope, whereas legislation passed by Congress and signed by the president has fewer boundaries.

As Reeves’ research shows, laws are also more popular in the court of public opinion.

“If a president issues an executive order and no one contests it, it’s not going to trigger a big public debate. There’s a certain consensus that if Biden wants to issue a mask mandate on federal property, he can do that,” Reeves said.

“But our research shows that unilateral action – especially on contested issues like student loan debt and gun rights – is costly to a president’s public standing, and the threat of public backlash may constrain a president’s use of unilateral powers.”

However, the reality is that legislative solutions are increasingly rare.

“Congress is polarized and routinely governed by slim partisan majorities. This makes it difficult for presidents to secure coalitions to pass legislation that advances their policy goals,” Reeves said.  

For these reasons, most presidents have treated executive orders as a last resort.

“Obama on immigration is a good example of this. He really tried to work with Congress to pass legislation until he decided that wouldn’t work and issued the DACA policy via a memo that DHS wrote,” he said

President Trump is the exception. Early in his administration, Trump issued executive orders on major issues including immigration and Medicare.

“He also created signing ceremonies for executive orders in ways that may have existed under previous presidents, but not with such frequency and fanfare,” Reeves said. “Some of the highly active supporters may have liked the showiness of the executive orders and felt like the president was doing their work. Overall, though, most Americans do not like to see this. And even some of Trump’s supporters would have much rather preferred legislation.

“I don’t think Trump’s use of executive orders served him well. It’s potentially one of the reasons why Trump never broke out of his base support.”

Will Biden face the same political fate?

“Biden looks more like presidents past, at least early on promising bipartisanship. We’ll see whether or not he can come through on the promises,” Reeves said.  

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