Trump-Appointed Judges a Factor in Biden’s Executive Orders

PBiden is currently on an unprecedented flurry of presidential executive orders being issued. Biden signed his 94th Executive Order earlier in the month. This order was designed to allow women to travel to other states and to make it easier for Medicaid recipients to get coverage. Prior to that, he had signed other orders which sought to bring hostages back, resolve labor disputes, provide access to reproductive healthcare, and protect against anti-LGBTQ legislation.

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. Activists and lawmakers are urging the President to be more assertive in his position on abortion and on climate change, gun safety and immigration.

Inside the White House, there’s a growing reluctance to take executive orders much further. There is concern that orders that test the limits on presidential power could be reversed. This is one reason why there has been a growing reluctance at the White House. Although previous presidents had to be concerned about a federal court overturning them, Trump’s administration perceives an even greater danger with the numerous federal judges that he has appointed. These judges could not only move to overturn the Biden orders but also use them to weaken other orders.

“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 ofRoe 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. He says that political groups who want to contest an order can do so by being well-versed with the operation of the judiciary system. “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. WadeThis has allowed at least 15 states the opportunity to prohibit abortions and severely restrict their access. Biden set up a taskforce in July to see that all federal departments were taking measures to protect access to abortion and contraception.

Patty Murray (a Democrat from Washington) tells TIME the legal concerns over additional executive orders can be real. However, she argues they shouldn’t stop the Biden administration taking further action to ensure 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. Biden said that there were only certain things he could do unidirectionally. “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 lawmakers have asked the President for a declaration of a public emergency to deal with the issue. They argue that this would free up federal resources to assist those looking to abort, and also communicate better to the general public the seriousness Biden is taking the situation.

A letter was written by nearly 20 senator Democrats urging the government to declare an emergency in the health care system regarding abortion. It was signed by more than 80 House Democrats calling for Biden’s announcement of both a national and public emergency.

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 suggested that the public health emergency might make it easier to access abortion medication like misoprostol or mifepristone by protecting doctors based outside states where they are legally allowed and who write prescriptions for women from states without abortion bans. Legal experts believe such a move could be resisted by the courts, prompting an appeals process which would eventually bring the case before the Supreme Court. 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

Conservative judges have been critical of how wide federal agencies can act without explicit instruction from Congress. This is why they are often criticized.

“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.

These recent decisions have led some experts to suggest that Biden’s best course of action is to use federal laws to improve the safety, security, and civil rights of women, rather than using executive power to make changes with 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. A number of Trump-related actions have been criticized as a misuse of executive power by senior White House officials. Biden’s actions could draw the same criticisms, making it difficult for Democrats to make a clear contrast with previous administrations.

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. The Centers for Medicare, Medicaid Services issued guidance instructing U.S. doctors to stop a pregnant woman from being treated as an emergency. In July Ken Paxton (Texas attorney general) sued Biden. 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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