TagExecutive Order

Biden signs 28 executive orders in first two weeks in office

President Joe Biden (D) signed 28 executive orders, 11 presidential memoranda, and five proclamations in his first two weeks in office.

That is more executive orders than his three predecessors combined—Presidents Donald Trump (R), Barack Obama (D), and George W. Bush (R)—signed over the same period of time.

Executive orders are directives written by the president to officials within the executive branch requiring them to take or stop some action related to policy or management. They are numbered, published in the Federal Register, and cite the authority by which the president is making the order.

Presidential memoranda also include instructions directed at executive officials, but they are neither numbered nor have the same publication requirements. The Office of Management and Budget is also not required to issue a budgetary impact statement on the subject of the memoranda.

In his 2014 book, By Order of the President: The Use and Abuse of Executive Direct Action, Phillip J. Cooper, a professor of public administration at Portland State University, wrote, “As a practical matter, the memorandum is now being used as the equivalent of an executive order, but without meeting the legal requirements for an executive order.”

Proclamations are a third type of executive directive that typically relate to private individuals or ceremonial events, such as holidays and commemorations.



Trump announces 15 pardons, five commutations

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On Dec. 22, President Donald Trump (R) issued 15 pardons and five commutations. Those pardoned included former Trump campaign aide George Papadopoulos and former congressmen Duncan Hunter (R-Calif.), Chris Collins (R-N.Y.), and Steve Stockman (R-Texas).

President Trump has issued 43 pardons and 21 commutations while in office. Of those, Trump issued 28 pardons and 15 commutations in fiscal years 2020 and 2021.

By comparison, President Barack Obama (D) issued 212 pardons and 1,715 commutations during his eight-year term. The last one-term president, George H.W. Bush (R), issued 74 pardons and three commutations.

Between fiscal years 1902 and 2021, presidents issued 14,233 pardons and 6,568 commutations. Democrats have issued more of both (8,393 pardons and 4,103 commutations) than Republicans (5,840 pardons and 2,465 commutations). These figures do not include instances of mass pardons such as in 1974 when President Ford pardoned individuals who evaded the draft during the Vietnam War.

The U.S. Constitution, in Article II, Section 2, grants the president the power of executive clemency. Executive clemency includes the power to pardon, in which the president overturns a federal conviction and restores “an individual to the state of innocence that existed before the conviction,” and the power of commutation, which allows a president to shorten or reduce a federal prison sentence. Executive clemency is limited to federal offenses.



Office of Personnel Management continues implementation of Trump’s civil service executive orders

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The Office of Personnel Management (OPM) on December 17 issued a proposed rule aimed at continuing the implementation of President Donald Trump’s (R) 2018 civil service executive orders. 

The proposed rule prioritizes federal employee performance over length of service in decisions concerning a reduction in force—a principle set forth in Executive Order 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit Systems and Principles.” 

E.O 13839 is one of three executive orders issued by President Trump on May 25, 2018, aimed at improving efficiency and accountability within the federal civil service. E.O. 13839 seeks to advance agency supervisors’ ability to support accountability within the federal civil service while protecting the procedural rights of federal employees. The order proposed several principles, management tactics, and reporting procedures for agency supervisors to incorporate in order to address issues of employee accountability.

The proposed rule is the latest in OPM’s attempts to implement the civil service executive orders. OPM previously implemented provisions of the executive orders in September 2019 and October 2020. 

Supporters of E.O. 13839 have argued that the order will improve the federal civil service by allowing agency supervisors to more efficiently address poor performance and misconduct in the workforce. Opponents of the order, including federal employee labor unions, have argued that the management changes are unnecessary and might fail to bring about the stated goal of improved employee performance.

The proposed rule is open to public comment for 30 days.

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President Trump executive order outlines use of artificial intelligence by federal agencies

On December 3, Donald Trump signed an executive order that aims to promote the use of artificial intelligence (AI) by federal agencies while protecting public trust and upholding the law. The order directs the Director of the Office of Management and Budget to post a roadmap for future policy guidance about AI consistent with the principles of the order.

Guidance documents clarify and affect how agencies administer regulations and programs. However, they are not legally binding in the same way as rules issued through one of the rulemaking processes of the Administrative Procedure Act.

The order directs federal agencies adopting AI to adhere to the following framework:

1. Agencies should design, acquire, and use AI in ways that respect national values and that remain consistent with the U.S. Constitution and other laws and regulations (including those involving privacy, civil rights, and civil liberties)

2. Agencies should only use AI in situations where the benefits significantly outweigh the risks and the risks can be measured and managed

3. Agencies should use AI for the cases regarding which the AI was trained and make sure the AI is accurate, reliable, and effective

4. Agencies should make sure AI is safe, secure, and resilient in the face of attacks. Agencies should make sure AI operations and outcomes are understandable by experts, users, and others as needed

5. Agencies should make sure that human responsibilities regarding AI are clear and that all operations are well-documented and traceable to the extent practicable

6. Agencies should make sure their AI applications are tested regularly to ensure compliance with these principles and consistent performance 

7. Agencies should be transparent about disclosing relevant information about the use of AI

8. Agencies should be accountable for implementing and enforcing safeguards regarding the use of AI and document compliance with those safeguards

The order also directs each federal agency to identify and share non-classified uses of AI by the agency and determine what changes they must make to comply with the order. Finally, the order directs the General Services Administration to attract industry and academic experts to help agencies develop AI systems.

To learn more about executive orders or guidance, see here:

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You can read the text of the executive order here.



Legislation would block Trump executive order to change civil service classifications

On Oct. 27, Rep. Gerry Connolly (D-Va.) introduced the Saving the Civil Service Act (H.R. 8687) to block President Donald Trump’s Executive Order 13957.

The executive order, issued on Oct. 21, aims to give agency heads greater flexibility in the appointment of staff members who serve in policy-related positions and make it easier for agency management to remove poor-performing employees.


“The executive order would erode due process protections for civil service employees,” Connolly, along with Rep. Carolyn Maloney (D-N.Y.) said in a letter that was signed by other members of the Democratic caucus. “It would expedite the hiring of Trump loyalists and place them in roles best served by career civil servants.”

The text of the executive order Trump signed reads: “Separating employees who cannot or will not meet required performance standards is important, and it is particularly important with regard to employees in confidential, policy-determining, policy-making, or policy-advocating positions. High performance by such employees can meaningfully enhance agency operations, while poor performance can significantly hinder them.”

The debate over the executive order to change civil service classifications is part of a larger debate over executive control of agencies. Executive control of agencies is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. 

Executive control is primarily exercised through appointment and removal power — the authority of an executive to appoint and remove officials in the various branches of government.

A scholarly debate in this area concerns the president’s removal power: The president has the authority to remove his appointees from office, for example, but he can only fire the heads of independent federal agencies with a cause.

U.S. Representative Carolyn Maloney (D-N.Y.) co-sponsored the Saving the Civil Service Act and the bill was referred to the House Committee on Oversight and Reform.

To learn more about executive control of agencies, see here.

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Union sues to block Trump executive order reclassifying civil service employees

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The National Treasury Employee’s Union (NTEU) on October 26 filed a lawsuit in the U.S. District Court for the District of Columbia that aims to block the implementation of President Donald Trump’s (R) Executive Order 13957. The order, issued on October 21, reclassifies federal civil service employees in the competitive service who serve in policy-related roles as members of the the excepted service.

The order directs agencies to reclassify competitive service employees who serve in “confidential, policy-determining, policy-making, or policy-advocating positions and that are not normally subject to change as a result of a Presidential transition” as members of the newly created Schedule F within the excepted service. The classification change, according to the order, aims to give agency heads greater flexibility in the appointment of staff members who serve in policy-related positions. The order also claims that the change will make it easier for agency management to remove poor-performing employees. 

Opponents of the order, including the NTEU and the American Federation of Government Employees, claim that the classification change exceeds the president’s authority and will politicize a large portion of the civil service.

Members of the competitive service are hired according to a neutral, merit-based selection process and have protections against at-will removal by their supervisors. Members of the excepted service, on the other hand, are recruited and hired by agencies to fill certain positions for which candidates cannot be appropriately assessed through the merit-based selection process and do not share in the competitive service’s at-will removal protections. The order, however, directs agencies to develop rules that create similar protections for Schedule F employees.

The debate over E.O. 13957 is part of a broader debate over executive control of agencies—one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Executive control is primarily exercised through the executive’s power to appoint and remove officials in the various branches of government.

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Trump executive order aimed at increasing agency control of policy-related employees

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President Donald Trump (R) on October 21 issued an executive order, “Executive Order on Creating Schedule F in The Excepted Service,” that directs agencies to reclassify federal civil service employees in the competitive service who serve in policy-related roles as members of the excepted service. Supporters of the order claim that the change will increase agency oversight of staff members who perform policymaking functions while opponents argue that the order will politicize policy-related civil service positions.

The order directs agencies to reclassify competitive service employees who serve in “confidential, policy-determining, policy-making, or policy-advocating positions and that are not normally subject to change as a result of a Presidential transition” as members of the newly created Schedule F within the excepted service. As members of the competitive service, these employees have been hired according to a neutral, merit-based selection process and have had protections against at-will removal by their supervisors. As members of the excepted service, these employees will be recruited and hired by agencies to fill certain positions for which candidates cannot be appropriately assessed through the merit-based selection process and will not share in the competitive service’s at-will removal protections.

The classification change, according to the order, aims to give agency heads greater flexibility in the appointment of staff members who serve in policy-related positions. The order also claims that the change will make it easier for agency management to remove poor-performing employees. Though the change makes the qualifying employees ineligible for the adverse action protections of the competitive service, the order directs agencies to develop rules that create similar protections for Schedule F employees. The order also instructs the Federal Labor Relations Authority to determine whether Schedule F positions should be eligible for union membership.

Opponents of the order, including American Federation of Government Employees National President Everett Kelley, argue that the order could potentially politicize a large portion of the civil service.

It is unclear how many positions will meet the order’s criteria for Schedule F. Agencies have 90 days from the date of the order to conduct a preliminary review of qualifying staff and must conduct a complete review within 210 days.

This order is the latest in a series of executive orders issued by Trump that seek to make changes within the federal civil service. Trump issued a trio of executive orders in 2018 aimed at facilitating the removal of poor-performing federal employees and streamlining collective bargaining procedures. Public sector unions unsuccessfully challenged the orders in court. That same year, Trump issued an executive order in response to the U.S. Supreme Court decision in Lucia v. SEC that moved administrative law judges from the competitive service to the excepted service.

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Office of Personnel Management implements Trump administration order regarding poor-performing federal employees

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The Office of Personnel Management (OPM) on Friday issued final rules that revise federal agency methods for addressing poor-performing employees in the civil service. The rules implement President Donald Trump’s (R) Executive Order 13839, which aims to streamline the discipline and dismissal processes for poor-performing federal employees.

The regulations implement the following changes to agency management practices:

  • Reduce the time for employees to improve their performance, allowing agencies to more quickly initiate disciplinary actions against employees deemed poor-performing. 
  • Reduce the time period for employees to respond to allegations of poor performance.
  • Reiterate that agencies are not obligated to help employees improve. 
  • Prohibit agencies from entering into settlement agreements that modify an employee’s personnel record. 
  • Mandate that agencies remind supervisors of expiring employee probationary periods. 
  • Establish procedures for agencies to discipline supervisors who retaliate against whistleblowers.

President Trump issued three executive orders on May 25, 2018, aimed at improving efficiency and accountability within the federal civil service. E.O. 13839, titled “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles,” seeks to advance agency supervisors’ ability to support accountability within the federal civil service while protecting the procedural rights of federal employees. The order proposed several principles, management tactics, and reporting procedures for agency supervisors to incorporate in order to address issues of employee accountability. OPM’s final regulations aim to fully implement the order.

Supporters of E.O. 13839 have claimed that the order will improve the federal civil service by allowing agency supervisors to more efficiently address poor performance and misconduct in the workforce. Opponents of the order have argued that the management changes are unnecessary and will fail to bring about the stated goal of improved employee performance.

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Ballotpedia study shows that 29 state APAs require administrative agencies to conduct a cost-benefit analysis before implementing rules

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A Ballotpedia study of all 50 state constitutions and administrative procedure acts (APAs) showed that 29 state APAs require administrative agencies to conduct a cost-benefit analysis before implementing rules, as of September 2020.

Cost-benefit analysis is an aspect of agency dynamics, one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Cost-benefit analysis requires administrative agencies to consider whether the potential costs of a new rule will outweigh its benefits.

Since President Ronald Reagan issued Executive Order 12291 in 1981, federal administrative agencies have conducted cost-benefit analyses for any new major rules. President Bill Clinton refined cost-benefit analysis requirements in Executive Order 12866 in 1993 and Presidents George W. Bush, Barack Obama, and Donald Trump have maintained cost-benefit analysis requirements in their own executive orders.

Ballotpedia’s study of state agency cost-benefit analysis standards concluded a variety of results.

Many states require administrative agencies to perform a cost-benefit analysis before making or changing any rules or regulations. Thus, Ballotpedia concluded that those states *require cost-benefit analysis*.

Some states require administrative agencies to perform the cost-benefit analysis only in certain circumstances. For instance, Illinois only requires such analysis if a proposed rule may have an impact on small businesses, nonprofit corporations, or small municipalities. Thus, Ballotpedia concluded that those states *conditionally require cost-benefit analysis*.

Some states require administrative agencies to perform a limited cost-benefit analysis before making rules. For instance, Alaska requires agencies to estimate annual costs for the state agency to implement the new rule. Thus, Ballotpedia concluded that those states require *limited cost-benefit analysis*.

Some states do not require administrative agencies to perform a cost-benefit analysis before making or changing any rules or regulations. Thus, Ballotpedia concluded that those states *do not require cost-benefit analysis*.

To learn more about Ballotpedia’s survey related to agency dynamics, see here:
Agency dynamics: States that require administrative agencies to conduct a cost-benefit analysis before implementing rules

Want to go further? Learn more about the five pillars of the administrative state here: Administrative state

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Federal Register weekly update: Highest weekly document total since June

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.

From October 5 to October 9, the Federal Register grew by 1,836 pages for a year-to-date total of 64,374 pages. Over the same period in 2019 and 2018, the Federal Register reached 55,016 pages and 51,814 pages, respectively. As of October 9, the 2020 total led the 2019 total by 9,358 pages and the 2018 total by 12,560 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 612 documents:

• 465 notices
• 16 presidential documents
• 40 proposed rules
• 91 final rules

Two final rules related to railroad track safety standards and textile fiber products identification as well as two proposed rules concerning the practices of market agencies in the business of receiving lambs and the registration of medical services agencies that handle controlled substances were deemed significant under E.O. 12866—meaning that they could have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Trump administration in 2020 has issued 27 significant proposed rules, 58 significant final rules, and one significant notice as of October 9.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2019, 2018, and 2017: Changes_to_the_Federal_Register

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Click here to find yearly information about additions to the Federal Register from 1936 to 2018: Historical_additions_to_the_Federal_Register,_1936-2018