Here's how Biden will demolish Trump's legacy

  • Biden has big plans to torpedo Trump's policies starting on Inauguration Day. 
  • The incoming president will use the same tactics Trump did when he entered office. 
  • Expect Biden to freeze pending rules, rewrite existing regulations, and trash Trump executive orders.
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There's an obvious playbook waiting for Joe Biden as he prepares to start tearing down Donald Trump's legacy. 

It's the same one Trump used four years ago. And Biden's team has already lined up a plan that will get rolling right after he's sworn in at noon on Inauguration Day.

Trump's early days in office were largely devoted to obliterating everything President Barack Obama and then-Vice President Biden accomplished over two terms. 

Each step of the way, the Republican president relished his moves to pull the US out of Obama-negotiated international agreements, dramatically shift priorities at federal agencies, and issue a spate of executive orders.

"Don't forget, President Obama — they say he was a great president," Trump said in August. "Well, you can't be a great president when much of what he's done we've undone." 

But now there's nothing stopping Biden from undoing all of Trump's work, too. 

"Every administration as they come into office will have identified guidance, rules, regulations, executive orders that they want to change and they'll go in with a plan and make changes as rapidly as the process will allow," said Mike Leavitt, a former Utah GOP governor and George W. Bush administration Cabinet official who led Mitt Romney's presidential transition planning effort during the 2012 White House campaign.   

"That's part of what you win when you win an election is the ability to do that," Leavitt added. 

Indeed, Biden's transition team has been at work behind the scenes for months planning to torch much of the outgoing administration's work. 

You can bank on Biden's team using familiar tactics to shred Trump's policies, according to former presidential transition team and executive branch officials interviewed by Insider. 

"I certainly expect that a Biden administration would use …  all the tools that were available," said John Cruden, who was stationed at the Justice Department as an assistant attorney general during the Obama administration. "A lot of things were done by executive orders and policy statements and guidance documents" under Trump, Cruden added. "Those are way easier to undo." 

Biden campaigned on big promises that he'll demolish pretty much everything that Trump and his allies spent the past four years putting in place. Biden's campaign-turned-transition slogan was "Build Back Better," and he's pledged major reversals on Trump policies on healthcare, immigration, environment, LGBTQ rights, and education. He's promised many of them would happen on his first day in office. 

"Joe Biden will consider every tool available, including Congressional and executive actions, to reverse Trump's damaging policies and restore critical environmental and public health protections for the millions of Americans and communities facing the pandemic and economic crisis," Biden campaign spokesman Jamal Brown told Insider prior to the election. 

Freezing rules

Here's how Biden's administration will get things started rolling back the Trump legacy: On day one, January 20, 2021, the new Democratic president's White House chief of staff Ron Klain will likely issue a memo that halts all federal regulations that are still pending. 

This won't be a surprise to any Washington veterans. Republican and Democratic administrations alike have issued these memos, which make it easier for new political appointees to change or unravel rules they don't like. 

"You can be utterly confident," Cruden said, "that the new administration within a day or two would pull every rule that was not final." 

Trump's first chief of staff, Reince Priebus, issued the most recent regulatory freeze with his memo on the president's first day in office. That stalled last-minute rules issued under the Obama administration like Endangered Species Act protections for bumblebees and energy efficiency standards aimed at combating climate change. Obama's top aide, Rahm Emanuel, did it right after George W. Bush left office; as Andrew Card in the new Bush White House did it to Bill Clinton. 

Such a freeze would give Biden's team time to review any last-minute or "midnight" rules issued by the Trump team between the election and Inauguration Day. 

Killing rules on the books 

The Biden team and congressional Democrats also eyeing a tool that would allow Congress to reject some Trump rules that were recently put on the books. 

It's allowed through a law called the Congressional Review Act, which was seldom used before Trump entered the White House. By May 2017, the Trump administration — backed by a GOP-led US House and Senate — had used the CRA 14 times to unravel Obama rules. 

Prior to Trump's tenure, it had been used once, when the George W. Bush administration axed a 2001 ergonomics rule issued by the outgoing Clinton administration. 

"That was an unprecedented degree of regulatory rollback," Daniel Esty, a law and environmental professor at Yale University who worked on Obama's 2008 transition team, said of Trump's moves. Esty said he expects "a significant attempt to pull back on a lot of that agenda" from Biden's team. 

Using the CRA became much more likely after Democrats clinched the Senate majority with wins in the Georgia Senate races. A majority of votes will be needed in both chambers of Congress to reverse regulations.  

Democrats have been keeping close tabs on which Trump rules could be ensnared by the CRA after Biden's inauguration. 

Writing new rules 

The Biden administration will also be in a position to scrap or rewrite any Trump rules that are already on the books. Those include policies dealing with air and water pollution, healthcare, technology, and every other issue that the alphabet soup of federal government agencies has the power to regulate. 

Every presidential administration issues a steady stream of new regulations, but the pace of rulemaking could be even more frenzied than usual under a Biden administration aiming for swift reversals from the Trump era. 

Still, writing federal rules (or scrapping existing ones) takes time. Agencies under federal law must give public notice, allow anyone to submit comments, and also explain why changes to existing rules are necessary and legal. Mess any of that up and the Biden administration's policies become highly vulnerable to the inevitable challenges that come in court.

About-face on international deals

Biden has promised to reenter the US into the Paris climate agreement "on day one" of his administration. Trump finalized the US exit from the major United Nations-negotiated global warming accord the day after the 2020 presidential election. 

Biden has also pledged that the US will rejoin the Iran nuclear deal, another big Obama foreign policy legacy agreement aimed at preventing Tehran from securing a nuclear weapon. Trump revoked the deal in 2018, calling it "a horrible one-sided deal that should have never, ever been made." 

Legal 180s

Another powerful option for the Biden administration: reverse the federal government's position in ongoing lawsuits. 

Like any new administration, Biden's will have the authority to change course in any active litigation over major Trump-era policies. For example, where the Trump Justice Department may have been asking a court to uphold a policy held up by legal maneuvers, a Biden-led DOJ could argue that that same policy is actually illegal. 

Federal judges don't typically take kindly to such reversals. But Trump and other presidents before him have used this approach after a transition in power where the party controlling the White House also changes. 

In a high-profile Supreme Court case early in 2018, Trump's lawyers argued that Ohio could cancel citizens' voting registrations if they hadn't confirmed their eligibility within two years. Obama's lawyers had said the opposite — that Ohio was acting illegally purging eligible voters from the rolls. 

The Justice Department had changed course in at least 10 major federal cases during Trump's first year in office on issues like labor law, voting, immigration, and health care, The Wall Street Journal reported. 

Obama did it, too. In 2009, for example, Obama's lawyers asked a federal appeals court to pause a legal battle over a contentious Bush-era air pollution standard that critics said was too weak. The new Democratic-led administration later told the court it planned to reconsider the regulation itself. A very similar fight with the roles reversed also played out during Bush's term when its EPA shifted away from the Clinton administration's more aggressive approach to curtailing power plant emissions. 

Executive orders

One of the fastest ways for a new administration to enact policies is with the president's pen. Those orders are also by nature extremely easy for the next president to toss out, and Biden can change or revoke any Trump executive orders when he's in charge of the White House. 

In his first few weeks in office, Trump signed piles of executive orders signaling his priorities on everything from directing the construction of a U.S.-Mexico border wall to suspending the entry of immigrants from certain Muslim-majority countries into the United States. 

Some of Obama's first executive orders in 2009 were new ethics guidelines for his administration and an order directing the closure of the Guantánamo military prison within a year (that didn't happen and the prison remains open). 

Obama relied heavily on executive orders for his policies, too, after some of his big-ticket legislative efforts — like climate change and immigration reform — failed to win the necessary support on Capitol Hill. "I've got a pen to take executive actions where Congress won't," he said after Democrats lost control of the Senate in the 2014 midterms. 

Biden plans to rely heavily on executive orders, too. He intends to sign about a dozen executive actions on Inauguration Day to address COVID-19, the ailing economy, climate change, racial equity, immigration, and government operations, Klain wrote in a memo outlining Biden's first 10 days in office. 

Read more: Biden plans to roll back controversial Trump policies on his first day in office, including reversing the Muslim travel ban and rejoining the Paris climate accord. 

New administrations often roll out rapid-fire executive orders in their early days to show that they're following through on their campaign trail promises. Many of Trump's early orders unraveled Obama policies; early Biden orders will similarly undo Trump's work. 

"You could do 100 executive orders if you wanted on day one," said Chris Lu, a former Obama White House official who was executive director of the Obama-Biden transition team in 2008. 

A new administration will typically roll them out over time, however, as a way to placate its political base and even to galvanize support for more aggressive actions down the line. "A lot of these are messaging opportunities as well, so you want to send a clear signal," Lu said.   

New leaders

Personnel is policy, and Biden's hires will send a clear signal — as Trump did — about his policy plans as he announces new appointments to lead federal agencies. 

A president installs about 4,000 people throughout the federal government — including more than 1,000 with jobs that require Senate confirmation. 

The Trump administration signaled its priorities for environmental agencies by installing leaders who promoted a deregulatory agenda. For example, Energy Secretary Rick Perry had long called for abolishing the Department of Energy before he got the job leading it at the start of Trump's term. 

Biden's administration is drawing upon former Obama administration officials, presidential campaign staff, Biden's former campaign trail rivals, and progressive activists. 

New department leaders offer fresh plans and directions for their own agency staffers and for the public. They can send clear signals about what issues the federal workforce should be prioritizing and can issue guidance documents about how they plan to enforce the law. 

Legislation

Getting a new law passed is the best way a president can ensure that his policies will endure. But congressional gridlock and partisan sparring have made major legislation hard to come by in recent years. 

Of course, Biden will enter the Oval Office with a long legislative wish list packed with items like infrastructure spending, climate change bills, healthcare overhauls, and immigration reform. 

Notably, Biden hopes to convince Congress to spend a whopping $2 trillion to rebuild infrastructure, combat global warming, and kickstart an economy reeling from the coronavirus pandemic. He also pledged to make Roe v. Wade "the law of the land" if he's in the White House. 

But Democrats' failure to make big gains in the Senate — even though they'll hold a one-vote majority — will make action on sweeping policy items tough, since 60 votes are needed to advance most controversial bills. 

Biden will have to prioritize his legislative goals amid the inevitable 2022 midterm political pressures that will begin immediately after he takes office, all while grappling with the ongoing coronavirus pandemic and its economic fallout. And like every other White House resident, Biden won't get all the big bills on his wish list. 

"Campaigns are almost always based on the assumption that they'll get exactly what they want," Leavitt said. "That isn't always the case." 

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