The First 100 Days – A Closer Look at Executive Actions, Controversy, and More

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As we continue a deep dive into President Biden’s first 100 days, it seems apparent that his media honeymoon is now fading. Up until recently, the Biden administration’s relationship with the mainstream press was seemingly excellent. However, as the days wear on, the new president is finding himself subject to slowly increasing media criticism. Press Secretary Jen Psaki has begun to prepare for the impending media blow. Already, she finds herself the subject of intense scrutiny across the globe. Recently, a tweet Psaki made last August has come to light again and has garnished some blowback in the press, with many people calling on her to apologize for using the and “tone-deaf” and “offensive” phrase. The tweet mocked Republican Senator Lindsey Graham of South Carolina, calling him “Lady G.” The reference is part of a Washington-insider joke that Senator Graham is a closeted gay man. Obviously, Graham has vehemently denied this claim. Since being named White House Press Secretary, Psaki’s reputation is under an even more watchful eye. As such, the White House has now become the subject of sideways glances, as Psaki has requested reporters send their questions in advance rather than firing questions in briefings. and advisors are now claiming the White House plans to bypass the national press completely, taking their information directly to local outlets.

As President Biden settled into his second week in office, his administration learned that several of his initial orders were already being challenged in various states. Groups advocating for women’s rights had already begun to push back on Biden’s transgender orders all across the U.S., particularly where sports are concerned. Lawmakers in six states were already drafting bills to combat components of the order. In his daily briefing, Biden likely learned that a number of groups were already preparing lawsuits against the administration and that the CDC had reported an additional 20k covid-related deaths.

Tensions between Syria and Israel continued and President Biden’s orders on drilling and oil are already having ripple effects across the globe.  Iran’s increasing oil exports became immediate news as Daniel Gerber, chief executive officer of Geneva-based Petro-Logistics reported, “With Iranian exports going through numerous trans-shipments and other clandestine behavior, it’s difficult to tell if these extra volumes will be shipped to refiners or stored for quick delivery once sanctions are loosened.” With that, Gerber’s attention turned to China, “Chinese buyers are gaining confidence that they can get away with higher imports,” he said.

Still, President Biden’s signing hand was primed and ready and by the time he met with the Secretary of the Treasury and other business leaders to discuss his Coronavirus spending plan at 1:45 pm. By mid-afternoon  Biden had already signed five more executive actions. Each of the day’s orders fit a single theme – racial equality.

As always, the layout for today’s article includes a list of actions, explanations for each, and a “controversy alert” where warranted. So, without further ado:


1) President Biden signed an order ending the Justice Department’s use of private prisons.

President Biden ordered the Department of Justice to end its reliance on private prisons. Purportedly, the administration wants the government to acknowledge the role it has played in implementing discriminatory housing policies. The order is said to be a measure to combat “systemic racism” in the prison system.  .

In remarks before signing the orders, Biden said the U.S. government needs to change “its whole approach” on the issue of racial equity. The Biden administration asserts that private prisons are more difficult to regulate and are vulnerable to corruption. Biden added that the nation is less secure and less prosperous because of systemic racism. “This is a first step to stop corporations from profiting off of incarceration,” Biden said.

Private prisons are owned and managed by a third party that has been contracted by a government agency. In short, private prisons operate as government contractors. “Private prisons in the United States incarcerated 121,718 people in 2017, representing 8.2 percent of the total state and federal prison population. Since 2000, the number of people housed in private prisons has increased 39 percent (sentencingproject.org).”

Critics of Biden’s order cite taxpayer costs in their support for privatized prisons. They state that private prisons can make cost-saving decisions independently and can shop for cost-effective resources with greater flexibility and far less “red tape” than a government provider. They also assert that private prisons can act quickly in terms of best practices and improve operational efficiencies quickly.

Those who oppose Biden’s order also believe that taxpayers are overly burdened by “big government.” Many believe government-run prisons are a big-government move that will increase operational responsibilities and increase taxpayer costs.

Other supporters of private prisons cite prisoner population levels as their reason for disliking Biden’s order. In California alone, the public prison system was operating at 137.5%  capacity, requiring Supreme Court intervention to reduce overcrowding. The use of private prisons ensures a well-controlled population. Critics of the president’s order believe overcrowding will become a serious issue as inmates are transported out of private facilities into government-owned prisons.

Those who are in support of private prisons state that rehabilitation rates are higher with private facilities than they are with government facilities. One study tracked private-prison inmates who were released after completing a facility-managed re-entry program. After 5 years, only 1 in 5 of the inmates tracked had committed another criminal offense. This means that, in some regions, private prisons have the potential to lower reoffending rates by up to 50%.

Currently, private prisons in the U.S. are also regularly used as immigration housing and emergency housing, etc. It’s currently unclear whether or not Biden’s order to terminate the use of private prisons will also affect the alternative public uses.  Some believe that closing private prisons will result in economically-burned communities with empty facilities, real estate inequalities, job cuts, and any debt that remains for that facility.


2) President Biden issued a directive ordering the Department of Housing and Urban Development (HUD) to examine the effects of the rule entitled “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard,” among other instructions.

Disparate impact is a judicial theory that allows plaintiffs to challenge employment or educational practices that are technically nondiscriminatory, or rather do not discriminate overtly and/or obviously but have a disproportionately negative impact on members of specific groups  — legally protected groups. The Obama administration championed a disparate impact rule as part of the Fair Housing Act. That means, for a plaintiff to prove discrimination in a lawsuit under the Fair Housing Act, they don’t need to prove their case. For example, a plaintiff would not need proof that a food vendor is refusing service to people of color or that a loan officer won’t extend loans to certain ethnic groups.  Many people believe that the rule is helpful because it allows for a way to address unintentional discrimination, while others say the rule is simply fuel for a different kind of discrimination and gives dishonest or vindictive plaintiffs a discriminatory leg up in legal cases.

The Trump administration began working with HUD, led by Dr. Ben Carson, to make clarifications to the disparate impact rule because it had become the foundation for unfair legal proceedings. Without the need to provide proof, plaintiffs could claim discrimination and win in lawsuits against businesses or sole proprietors who may, in fact, be innocent. In 2020, the Trump-era clarifications requirement went into effect. The update gave defendants more leeway to rebut the claims and required plaintiffs to meet a higher threshold of requirement to prove discrimination and limited the damages that can be sought for “unintentional” discrimination, that is, cases wherein an organization has discriminated against an ethnic group by accident or by coincidence. Roger Clegg, president of the Center for Equal Opportunity, put it this way, “If you have a landlord who says, ‘I’m not going to rent to people with a history of violent crime,’ the fact that that has a racially disproportionate result does not make it discrimination.” Though the Trump-era update was a point of controversy, supporters of the clarifier say it brought actual fairness to the Fair Housing Act rule.

President Biden signed an order halting the implementation of the Trump-era updates, returning them to their 2013 state.  The reversal has been met with mixed reviews, some praising the effort as a method to stamp out inequality in the housing system, and others returning criticism, stating that the move only shifts the discrimination from one place to another while undermining a basic premise of law – innocent until proven guilty.

3) President Biden signed an order that directs HUD to review Trump housing policies and subsequently address any discriminatory housing practices.

On January 26th, President Biden took executive action in an attempt to address racial equality in housing practices. One of his orders included a call for the Department of Housing and Urban Development (HUD) to review the fair housing policies mandated under the Trump administration. Upon examination, the HUD Secretary will take any necessary steps to implement the Fair Housing Act requirements in a manner that prevents any practices that may have an unjustified discriminatory effect.

As of now, there is no evidence that any of the measures taken under the Trump administration were discriminatory. However, President Biden has directed the agency to look specifically at the Affirmative Furthering Fair Housing Rule, a component of the fair housing initiative which was previously repealed under the Trump administration.

Supporters of the order agree with HUD Secretary Matthew Ammon, and believe it is a vital step toward correcting the federal government’s “legacy of housing discrimination” and securing “equal access to housing opportunities for all.”

There has been very little pushback against the action, as many have noted the memorandum doesn’t change Trump’s policies, and instead simply examines those policies for unforseen issues.

4) President Biden took executive action to “combat racism against Asian-Americans, Pacific Islanders.”

There have been reports of increased harassment against Asian Americans and Pacific islanders in connection to the suspected origins of Covid-19 (Wuhan, China). In the wake of lockdowns and economic struggles, the Trump White House began to receive reports of increased violence toward Asian Americans, presumably in both response and retaliation to the global pandemic. There appears to have been an even more notable spike in these harassment cases since President Biden took office. In an effort to combat the increase, President Biden asked the Department of Justice to work toward the prevention of xenophobia and harassment against Pacific Islanders and the Asian American communities.

President Biden’s executive action does not mention the Trump administration, nor does it outline the specific actions the Department of Justice will take to address the situation.

Biden supporters believe the increase in harassment against Asian Americans can be connected to the moniker “China virus” that was coined by President Trump early on in the coronavirus outbreak. Critics of the action believe it is political grandstanding with no specificity, adding that the memorandum itself only seeks to propagate racial rhetoric.

5) President Biden directed agencies to engage in consultations with tribal governments.

President Biden took executive action in an effort to recommit the federal government to a show of respect for tribal sovereignty. The goal of the memorandum is to strengthen the nation-to-nation relationship between the United States and tribal nations. His memorandum will recommit the administration to the efforts of tribal consultation. Tribal consultation was introduced under the Obama administration through a presidential memorandum that required all agencies within the federal government to engage in regular and meaningful consultation and collaboration with tribal officials. President Biden’s administration will reemphasize these consultations in an effort to establish and maintain a positive relationship and open communication so tribal leaders can have an opportunity to offer input on issues that will have a direct effect on their subsequent tribes.

As of now, there has been little to no pushback concerning Biden’s actions on tribal consultation and reports indicate that the practice remained active under the Trump administration as well.

Stay tuned for more deep-dives as we continue to follow the Biden administration through its first 100 days.

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