In his first few days in office, President Joseph R. Biden, Jr. has issued thirty executive orders and other actions. This number, without context, is hard to interpret. However, Biden’s willingness to use executive orders at the very beginning of his administration is unparalleled in recent history. In Donald Trump’s first month in office, he issued four. In Barack Obama’s first month, he issued eight. George W. Bush and Bill Clinton each issued two. George H.W. Bush and Ronald Reagan each issued one. While conservatives—especially common-good conservatives—will object to the substantive content of many of Biden’s orders, they ought to take Biden’s first few days in office as a model for future administrations.
To be sure, many of Biden’s orders are aimed at revoking orders issued by Donald Trump that he finds noxious. In these orders, one may see an example of quod principi placuit legis habet vigorem—Ulpian’s maxim (Inst. 1.2.6; Dig. 1.4.1) summarizing the principle that, by means of the Lex Regia, the people’s imperium has been transferred to the ruler. (See also Gaius, Inst. 1.5 & De Zulueta, Commentary pp. 15–16.) Biden is no longer pleased to uphold Donald Trump’s policies on any of a whole range of matters and sweeps them aside. Biden’s orders revoking Trump’s controversial immigration limitations are an excellent example of this. Very recent developments suggest that aggrieved parties—this time, Texas—will run to the federal courts to resist Biden’s orders, thwarting his leadership of the state. All of this follows a clear pattern, well defined over the last decade or more.
But not all of Biden’s orders are simply hitting the administrative reset button, purging Donald Trump’s agenda and substituting his own (as he was elected to do). In many of Biden’s orders, in fact, one finds a positive policy vision. One could even say that Biden is articulating his vision of the common good in many of these orders. Now, one could disagree—even vehemently—with Biden’s positive vision or his vision of the common good. Nevertheless, these orders offer an interesting pattern for future administrations and future proposals precisely because of this vision. This is especially true given the traditional conservative emphasis on limited government actions and mere procedure.
Indeed, the great insight of recent years, whether it’s in the debate between Sohrab Ahmari and David French or in Adrian Vermeule’s articulation of common-good conservatism, is that the government not only can but also should pursue substantive ends through state action. It is not sufficient, they say, to limit government power and hope for the best or focus on merely procedural issues. This is, as has been discussed at Ius & Iustitium many times, a view deeply rooted in the classical legal tradition. At a minimum, the state should pursue the common good as that has been understood over the last two millennia. However, one finds on the right especially deeply entrenched resistance to such a view. Not so on the left. This willingness to govern with ends in mind makes Biden’s executive orders illuminating.
One must be careful, of course, not to overstate the value of the example. While individual orders seem to articulate a positive vision, there is a sort of scattershot vibe to the orders taken as a whole. There is a feeling that Biden is delivering on a laundry list of complaints that his advisers have been nursing since Hillary Clinton’s defeat in November 2016. The orders as a whole do not give the impression of an overarching plan even if individual orders have a concrete, positive vision in mind. It is helpful, therefore, to look at those orders, quietly passing over the rest.
In his Memorandum on Modernizing Regulatory Review, issued on January 20, Biden ordered the director of the Office of Management and Budget to undertake a thorough review and offer recommendations on how to modernize and streamline regulatory review. However, Biden’s order does not seek merely procedural recommendation. Section 2(a) of the Memorandum seeks “concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”
Certainly this language ought to be taken seriously by common-good conservatives. While it remains to be seen how Neera Tanden, Biden’s nominee for the Office of Management and Budget, responds to this order, one could reasonably assume that she was consulted prior to its issuance and already has some ideas in mind. But the precise response is hardly relevant. With this order, Biden has directed that regulatory review be ordered to a list of substantive ends, including economic growth, social welfare, environmental stewardship, and the interests of future generations (whatever that may mean).
Given Pope Francis’s encyclicals, Laudato si’ and Fratelli tutti, both emphasizing various aspects as the Pope sees them of the common good, in addition to the long tradition of thought on the common good, one could say that Biden’s order clearly directs the regulatory review process to be ordered to the common good. No doubt there is much room for equivocation on these terms. However, in interpreting the order and any regulations promulgated pursuant to the order, the understanding of those terms becomes hugely important. Nevertheless there is a significant move here beyond merely procedural concerns toward substantive ends.
In comparison, Donald Trump’s early regulatory orders have very modest scopes. Trump’s Executive Order on Reducing Regulation and Controlling Regulatory Costs (E.O. 13771, Jan. 30, 2017) offers only some generic statements about fiscal responsibility. The Executive Order on Enforcing the Regulatory Reform Agenda (E.O. 13777, Feb. 24, 2017) states only “[i]t is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people.” Neither of Trump’s early regulatory orders demands the substantive goals set forth in Biden’s Memorandum on Modernizing Regulatory Review.
On January 20, Biden also issued a lengthy Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. This order is sweeping in its scope and is targeted in large part at rescinding some orders issued by Donald Trump at various points in his administration. For example, Biden’s order directs a review of all of Trump’s orders and agency actions on environmental issues. It also addresses national monuments and the Keystone XL pipeline. It also begins by articulating national policy.
Biden’s order begins by stating, “[o]ur Nation has an abiding commitment to empower our workers and communities; promote and protect our public health and the environment; and conserve our national treasures and monuments, places that secure our national memory.” The order goes on to enumerate quite a few specific policy goals, including environmental justice and the creation of “well-paying union jobs necessary to deliver on these goals.”
While the language is (no doubt intentionally) vague, this “abiding commitment” and the specific policy goals motivated by this commitment also amount to Biden’s positive vision of the common good. And the order directs agency heads to conduct a review of agency actions to find actions inconsistent with the positive vision Biden articulates. Of course, the agency actions in question are actions taken under Donald Trump. But that limitation is arbitrary: one could just as easily imagine a review over the past thirty years or some such. Beyond this, it is worth noting the (extremely broad) specific policy goals that are drawn out of the “abiding commitment.”
On January 25, Biden issued the Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers. The specific content of the order is aimed at centralizing the government’s response to “Made in America” procurement laws, going back to the Buy American Act of 1933, especially the process by which waivers from those laws are granted. Once again, however, it begins with a statement of Biden’s national policy. One part of that section of the order states that “[t]he United States Government should, whenever possible, procure goods, products, materials, and services from sources that will help American businesses compete in strategic industries and help America’s workers thrive.” Section 3 of the order directs agency heads to conduct a review of regulations that may be inconsistent with that policy directive—without reference to dates.
Industrial policy has been one of the significant questions of recent years. Indeed, much of the promise of Donald Trump’s administration was his apparent willingness to pursue an industrial policy for the United States that focused on the United States, as opposed to tired platitudes about free trade and the ingenuity of the American worker to keep up in a free trade world. One of the disappointments of the Trump Administration has been the failure to articulate and implement such an industrial policy. At least as a signal of his priorities, Biden’s order suggests that formulating an industrial policy is a major goal for him.
Biden is only one of a long line of presidents with an interest in promoting American industry through government procurement. Indeed, every administration for going on a century has had that as a priority, if not on their own initiative, then as a consequence of the Buy American Act. The real innovation of Biden’s order is the centralization of waivers from the buy-American requirement in the Office of Management and Budget at the White House. It is notable, however, that Biden’s directive to review agency regulations is not limited to Donald Trump’s administration the way his Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis is.
Common-good conservatives will no doubt point to other orders Biden has issued in his first few days in office as substantively bad or otherwise unacceptable. Perhaps they are. Certainly few of them will cheer the aggressive progressive agenda demonstrated by some of his early actions. More than this, as I noted above, there is a randomness to the orders Biden has issued that does not suggest a master plan at work. But this does not mean that there are no lessons to be learned from Biden’s early executive orders. It is now clear that it is possible to write executive orders framing a vision of the common good: they need not be merely expressions of the will of the chief executive. (Though they certainly can be that, as well.) And it is clear that this vision can be used to direct more granular policy-making and rule-making activities. There is no reason why this approach cannot be used by conservatives.
Indeed, many of the policy statements offered by Biden could well be adopted—with some modest amendments—by conservatives. Common-good conservatives ought to find little to object to with statements like “[o]ur Nation has an abiding commitment to empower our workers and communities; promote and protect our public health and the environment; and conserve our national treasures and monuments, places that secure our national memory.” Given the far-reaching goals Biden finds supported by this “abiding commitment,” one could imagine all manner of other goals it supports.
The only question is whether common-good conservatives want to imagine the goals this sort of language can support—that is to say, whether they want to learn the lesson Biden is teaching them.
Pat Smith
