Executive action is a crazy way to set policy

Let’s consider, for a minute, the “global gag rule,” which President Biden repealed Thursday. That’s the policy, beloved by many Republicans, that bars U.S. aid from going to nongovernmental organizations abroad that offer abortion services, counseling, referrals or advocacy. Here’s its sad history. President Reagan put the policy in place in 1984 to please a constituency of antiabortion religious conservatives, and when Vice President George H.W. Bush became president four years later, he reauthorized it with an executive order.

Two days after Bill Clinton became president, he announced that he was repealing the policy.

Two days after George W. Bush was elected, he reinstated it.

Barack Obama repealed it again on his third day in office in 2009.

Donald Trump reinstated it on his third day. And then significantly expanded it. Now Biden has undone it again. Using their executive authority, each reversed the previous president unilaterally, without congressional involvement. That’s just nuts. Of course, I’m glad that Biden is able to easily undo so many of Trump’s dangerous executive actions, including his many wrongheaded environmental decrees, his heartless immigration rules and his ban on transgender people serving in the military.

But a 12-year-old civics student could tell you that this is not how policy should get made. Policy is supposed to be durable, forged by the building of consensus, through a process of debate and deliberation.

Congress is supposed to pass a bill; the president is supposed to sign it.

Unfortunately, as presidents have found it more and more difficult to get anything at all through a deeply divided and polarized Congress, they’ve sought shortcuts around the normal process. Obama, for instance, frowned on executive action at first, but came to rely on it when he felt stymied by Congress. Trump issued more than 200 executive orders during his four years in office (and executive orders are just one form of unilateral presidential action).

It’s a way to get something done. But it is an equally good way to get things undone.

“What one president does, another can take away,” says Mark J. Rozell, dean of the Schar School of Policy and Government of George Mason University.

Hence these orgies of executive activity in the first few days of a new administration.

Biden, scarcely in office a week, has already taken more than 30 “presidential actions,” many of them to undo Trump’s previous orders. Trump did something similar to Obama when he was elected.

Rozell contends that many executive actions are approved or repealed in the early days of a presidency to please particular constituencies who helped the new president get elected or to make a splash. Presidents want to show that things are happening and that progress is being made.

But the wild policy swings have consequences. They can be disruptive to the lives and emotional well-being of the stakeholders affected — LBGTQ soldiers, say, or “Dreamers” waiting for their immigration status to change. And it costs actual money to change complicated policies in midstream. (Power companies, for example, can’t plan to meet future power needs when they know that energy policy is likely to change radically.)

In the case of the global gag rule (also known as the Mexico City policy), the repeated reversals send mixed messages and are damaging to U.S. credibility. They point to a lack of consensus, a lack of stability.

I’m on Biden’s side on the policy questions, of course. I’m overjoyed to see the end of Trump’s so-called Muslim ban on travelers to the U.S., the restoration of U.S. funding for the World Health Organization, the reentry of the U.S. into the Paris climate accord and the reimposition of the ban on oil and gas drilling in the Arctic wildlife preserve, to name just a few. It feels like a return to sanity.

That goes for the global gag rule as well. I don’t believe the U.S. should deny funding for reproductive health services — and I certainly don’t think the U.S. should try to tell international NGOs how to spend their own money. (The gag rule denies U.S. aid to foreign NGOs offering abortion-related services even if they’re spending their own separate, non-U.S. money on them.)

But real, durable policy needs to be made through the legislative process. Unilateral executive action has become a workaround, and presidents have grown overreliant on it.

A mature and functioning country doesn’t reverse itself on dozens of major policies every four or eight years.

I’m not saying there’s no place for executive action. All presidents have made policy without Congress. President Lincoln’s Emancipation Proclamation comes to mind.

But running the country by executive fiat is neither healthy for democracy nor efficient.

These days it sounds almost quaint to urge members of Congress to end their reflexive partisanship and stubborn rejectionism, and to return instead to the negotiating table. But that’s what needs to happen.

And Biden, once he’s finished undoing the damage Trump caused with his ill-considered orders, needs to move away from quick-hit executive decrees and turn his attention to making government work productively and rationally, as envisioned by the Constitution’s framers.