Trump Appointed Hundreds of Judges. Fear of Their Rulings May Be Holding Back Biden on Executive Orders

11 minute read

President Biden has been on a blitz of issuing presidential executive orders. Earlier this month, he signed his 94th order, one aimed at helping women travel to other states for abortions and finding ways for those eligible to access Medicaid coverage. Before that he signed orders that sought to help bring hostages home, end labor disputes, protect access to reproductive health care, counter anti-LGBTQ state legislation and address police misconduct.

Not since Jimmy Carter has a president issued as many orders at Biden’s pace, according to a tally kept by the University of Santa Barbara’s American Presidency Project. Yet for some progressives, Biden isn’t wielding that power nearly as strongly as he could. Not only on abortion, but also on immigration, the climate, and gun safety, lawmakers and activists are pressuring the President to act more assertively by signing more expansive orders that push policy in the direction they want it to go.

Inside the White House, there’s a growing reluctance to take executive orders much further. Among the reasons for that reluctance is a concern that any order that tests the limits of presidential powers could backfire spectacularly. While previous Presidents also had to fear a federal judge overturning their executive orders, the current administration sees a more potent danger in the dozens of judges former President Donald Trump appointed to the federal judiciary, some of whom could move to not only overturn a Biden order, but use it to erode the force of other orders and permanently weaken the executive branch.

“All the base wants him to do is defend this stuff,” says a person familiar with the White House’s discussions about executive orders. “There is peril in going too far.”

During Trump’s four years in office, he appointed more than 200 judges to the federal bench, including many to the powerful federal appeals courts, creating a judiciary where more than a quarter of active federal judges are Trump appointees. This included the three Supreme Court justices that cemented a deeply conservative majority on the nation’s highest court. Since those justices took the bench, they have issued multiple opinions signaling skepticism of the executive branch’s authority.

“There’s no question that the courts are hostile to federal action in the health-and-safety space,” says Lawrence Gostin, a professor of global health law at Georgetown University, who has advised the Biden administration on its response to the overturning of Roe v. Wade. “Whatever the administration does, there’ll be a flood of legal challenges. There’ll be a lot of forum shopping trying to bring cases before conservative, probably Trump-appointed, judges. And then they want to get to the Supreme Court.”

Some Trump-appointed judges “are very activist and are very happy to take things away from the elected President and even the elected Congress,” says David Super, a Georgetown Law professor and an expert on administrative law. Political groups that want to challenge an order are well-versed in how to work the judicial system, he adds. “Someone wanting to challenge an executive order can largely choose their judge.”

Biden’s Post-Roe Strategy

There’s no area where Biden has faced more pressure to be bolder in his executive order strategy than on abortion. The Supreme Court’s decision in June to overturn Roe v. Wade has opened the door for at least 15 states to ban abortions or drastically restrict access to them. In July, Biden created a task force to ensure every federal department was taking steps to safeguard access to abortion procedures and contraception.

Sen. Patty Murray, a Democrat from Washington and the chairwoman of the Senate health committee, tells TIME that the concerns about a legal backlash to additional executive orders are real, but argues that they should not stop the Biden administration from taking more action to protect abortion access. “This is a health care crisis for women in this country,” Murray says. “We are seeing on a daily basis new chaos that has been created by Roe v. Wade being overturned, and how these Republican policies are really threatening women’s health.”

In announcing his most recent order in response to the Supreme Court ruling on Aug. 3, Biden said that he was acting to “help safeguard access to health care, including the right to choose and contraception” as well as promote the safety of clinics and privacy of patients. In the end though, he said, there was only so much he could do unilaterally. “Ultimately, Congress must codify the protections of Roe as federal law.”

“And if Congress fails to act,” the President continued, “the people of this country need to elect Senators and Representatives who will restore Roe and will protect the right to privacy, freedom, and equality.”

Many Democrats find Biden’s cautiousness infuriating, when Congress lacks the votes to codify a federal right to abortion and he has the power of the presidency at his disposal. Some in Congress have called for the President to declare a public health emergency on the issue, arguing that it would not only free up more federal resources to help those seeking abortions, but better communicate to the public how seriously Biden and his party are taking the situation.

In July, nearly 20 Senate Democrats wrote a letter urging the administration to declare a public health emergency on abortion, and more than 80 House Democrats signed one calling on Biden to announce both a national emergency and a public health emergency on the issue.

Biden said last month that his administration was still weighing whether to declare a public health emergency, but Jen Klein, the co-chair and executive director of the White House Gender Policy Council, said on July 8 that it “didn’t seem like a great option.” When the Biden administration began looking at such a declaration in the wake of the Roe decision, “we learned a couple things,” Klein said. “One is that it doesn’t free very many resources. It’s what’s in the Public Health Emergency Fund, and there’s very little money — tens of thousands of dollars in it. So that didn’t seem like a great option. And it also doesn’t release a significant amount of legal authority. And so that’s why we haven’t taken that action yet.”

Some prominent Democrats have also suggested that a public health emergency could make abortion medications like mifepristone and misoprostol more widely accessible by protecting health care providers based in states where the medications are legal who choose to write prescriptions for women in states with abortion bans. Such a move would be all but certain to draw legal challenges, legal experts say, setting off an appeals process that would ultimately deliver the case to the same Supreme Court that already overturned Roe v. Wade. Some Democrats and legal experts fear that the court’s ruling in such a case could set a precedent that further erodes the federal government’s options related to abortion access and other key issues.

Declaring a public health emergency for abortion “would be disastrous for the future of public health, for the public’s trust in public health, for the importance of science,” Gostin says, adding, “secondly, it’s almost inviting the courts to handcuff public health agencies in the future.”

“Lives are on the line”

Biden’s track record with the federal judiciary, and particularly the conservative super-majority in place at the Supreme Court, gives him good cause for wanting to avoid further entanglements with them. Since he became President, the Supreme Court alone has issued several rulings expected to reverberate across the federal government, including decisions that curbed the authority of the Environmental Protection Agency, struck down the CDC’s eviction moratorium and blocked the administration’s mandate on large employees to require its employees get vaccinated against COVID-19 or get regularly tested for it.

A conservative federal judge this spring also struck down the CDC’s mask requirement for public transportation. And on July 21, the Supreme Court allowed a federal judge to block the Biden administration’s immigration guidelines telling ICE to prioritize going after immigrants who posed threats to national security, which had been aimed at reversing the Trump administration’s broader arrest policies.

“My view of it has been that the Biden administration has probably delayed some of its major rule-making initiatives in part to prep for significant judicial headwinds,” says Adam White, a co-director of the C. Boyden Gray Center for the Study of the Administrative State at George Mason University’s law school

Much of the pushback from conservative judges has related to how much leeway federal agencies have to take actions absent explicit instructions from Congress.

“Both President Trump’s judicial appointees and also a lot of President Bush’s judicial appointees have a much more skeptical view of the agencies’ view of statutes and the agencies’ procedure,” says White, who is also a senior fellow at the American Enterprise Institute, a center-right think tank.

With these recent rulings in mind, some experts say the safest path for Biden is to focus on what he can do using existing federal health, safety and civil rights laws rather than exerting executive powers to take actions that may have less precedent. “Biden needs to stay in his lane, do things that will improve the lives of everyday women, have a reasonable chance of being upheld by the courts and are squarely within the center of where most Americans are,” Gostin says.

Biden’s hesitancy on executive orders is not just related to fear of how the courts might respond. Senior White House officials are also wary of doing too much by executive power given that Trump repeatedly took actions that were viewed as abusing the power of his office to push legal and Constitutional limits. They fear Biden taking actions that might draw similar criticisms would make it harder for Democrats to draw as clear a contrast from the previous administration as they would like.

In addition, some in the administration don’t want to distract from the remarkable progress Biden has managed with Congress of late. On top of recent successes on measures involving gun safety and boosting domestic semiconductor manufacturing, the Inflation Reduction Act—a potentially transformative piece of legislation that includes significant investments aimed at combating climate change and lowering prescription drug costs—was sent to Biden’s desk on Friday.

For those who view the administration’s efforts as too timid, fears of how a federal court might respond to a particular executive order are outweighed by a desire for Biden to do more as abortion remains illegal in huge swaths of the country.

“We have to explore every single avenue to fight back and that means litigation even when the courts aren’t favorable, it means mobilization even when the seats have been gerrymandered in many states,” says Alexis McGill Johnson, the chief executive officer and president of Planned Parenthood. “I think the point here isn’t to worry about which court will take it. It is to also demonstrate to the public, which by and large supports access to abortion, that lawmakers and the judiciary are far out of step with where the residents of many of these states are.”

There have already been challenges to some of the other Biden Administration’s limited actions on abortion since the Supreme Court ruling. Texas attorney general Ken Paxton sued the Biden administration in July over guidance issued by the Centers for Medicare and Medicaid Services instructing U.S. doctors that they were protected by federal law to end a pregnancy as part of emergency treatment. Murray called the Texas lawsuit “downright barbaric.”

When it comes to concerns about a backlash from conservative judges, “that’s a balance that everybody’s gonna have to look at with every decision and every move we make,” Murray says.

“But at the end of the day, the risk that we’re seeing right now is women whose literal lives are on the line.”

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