Jacob Schlesinger
President Biden is moving swiftly on his agenda to remake large parts of the economy by wielding the powers of the executive branch. He signed more than 30 executive orders in his first month, nearly as many as the past four presidents combined at this point in their terms.
He is about to run into a formidable obstacle: a judiciary turned increasingly skeptical of regulatory authority, and conservatives determined to tap into that skepticism.
Last week, two Donald Trump -appointed judges in Texas moved to block two different early Biden actions. On Feb. 23, one imposed a nationwide injunction against the new president’s 100-day pause on deporting migrants, writing that the Department of Homeland Security had overstepped its authority and given insufficient justification for swiftly reversing a Trump-era policy.
Two days later, another judge declared unconstitutional a pandemic eviction moratorium started by Mr. Trump and extended by Mr. Biden.
Meantime, the Western Energy Alliance, a Denver-based organization representing 200 companies, is suing to stop a Biden executive order suspending oil and gas leasing on federal lands. “We like our chances in court,” said alliance president Kathleen Sgamma. “The 230-plus judges that Trump has put in place are very significant.”
It’s too soon to know how any suits will ultimately be resolved, but they are a glimpse of a restraint on Mr. Biden’s ambitions, including curbing greenhouse-gas emissions, bolstering worker protection and reducing racial inequality.
Republicans no longer control the White House or Congress, but before ceding control, former President Trump and then-Senate Majority Leader Mitch McConnell (R., Ky.) stocked the courts with a new generation of judges adhering to a growing conservative movement dedicated to reining in what some refer to as the administrative state.
“Biden and his agencies will face legal headwinds that Obama and his agencies didn’t,” said Adam J. White, a regulatory expert at George Mason University’s Antonin Scalia Law School. “If they expect to pick up where Obama left off, they’ll be in for rough sailing.”
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