President-Elect Biden Prepares Immediate Executive Orders

President Trump issued 196 Executive Orders through late October and Obama issued 295.  Many of Trump's Executive Orders attempted to limit regulation, however, rather than expand it.  Mr. Biden reportedly plans to issue numerous Executive Orders on his very first day in office, January 20, 2021. 

Of course, as under Presidents Obama and Trump, the new President will face challenges in court in which parties will contend that new Executive Orders are arbitrary and capricious, or otherwise inconsistent with statutory and Constitutional law.

One of the first Executive Orders will likely relate to federal contractor diversity training, in which President Trump had issued an Executive Order prohibiting federal contractors from conducting training that encompasses "race or sex stereotyping," or "race or sex scapegoating," including training related to unconscious bias "to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or their national origin, is racist, sexist, oppressive or biased, whether consciously or unconsciously."  Businesses largely felt that this Executive Order chilled their diversity training, and this is one of the previous administration's policies expected to be modified very quickly. 

Another Executive Order of the prior administrations expected to be undone quickly pertains to religious freedom.  Because Mr. Biden has publicly expressed support for a contraceptive mandate, he may try to limit exemptions to houses of worship and non-profit organizations with religious submissions.

President Trump had revoked Obama Executive Order 13495, which required that a successor federal contractor must, in certain circumstances, offer a right of first refusal of employment for employees who had been employed under the predecessor contract.  Mr. Biden will likely re-institute this Executive Order.

Another Executive Order that will be of major importance may be instituted by Mr. Biden concerns the so-called "black-listing" Executive Order.  He may consider an Executive Order considered by President Obama, which would favor giving federal contracts to labor-friendly companies that provided certain worker benefits such as a living wage, paid sick leave, health insurance, and retirement benefits.  Such an order will likely give weight to considerations of a company's compliance record in regard to labor laws - similar to a rule change proposed by the Clinton Administration but subsequently set aside by the Bush Administration.

This is part of our December 2020 Newsletter.

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