Biden seen ‘aggressive’ use of executive orders with Congress deadlocked
US President-elect Joe Biden will arguably become the most powerful man in the world in January, but in America the checks and balances for which the country’s political system is known will severely constrain him.
Bitter partisanship left Congress deadlocked for more than a decade, prompting presidents to increasingly rely on their executive powers to achieve their goals. Unless Democrats overturn two Senate seats in Georgia in the Jan.5 runoff election, Biden faces the same legislative hurdles as Presidents Donald Trump and Barack Obama and is expected to continue the recent tradition of using the shares of the executive to carry out parts of its political program.
With Congress required to approve budget increases, Biden’s multibillion-dollar policies – a carbon tax, expanded government health programs, a universal child allowance, infrastructure investments and back-up plans COVID-19 – will be difficult to achieve without bipartisan support.
However, a president has significant discretionary powers through executive orders, memoranda, and proclamations, while the complexities of U.S. law leave room for creative interpretations.
“You are limited by what the law allows, but the good news for Presidents is that the law allows a lot of things,” Andrew Rudalevige, Thomas Brackett Reed professor of government at Bowdoin College, said in an interview, predicting that a Biden presidency include “a fairly aggressive use of executive actions.”
In the past, executive orders have been used to racially integrate the armed forces, to prohibit people from hoarding gold, and to take steel mills under federal control. Biden is expected to begin his term with a wave of executive orders that reverse Trump’s policies.
Oil and gas, climate
“Handy fruit for a Biden presidency would include temporary protective status for all immigrants arriving from COVID-infected countries, shutting down oil and gas rentals on federal lands, redefining poverty levels etc., “said John Owens, professor of US government and politics at the University of Westminster.
“In a little longer term, join the Paris climate agreements, appoint a majority in the NLRB – National Council for Labor Relations – cancel student loans, close Guantanamo, rework agricultural and food policy, reduce the cost of drugs and authorize the manufacture of generic drugs, providing a public option for financial and other services, ”Owens said.
In international affairs, the Constitution gives the sitting president a freer hand.
On trade, Biden has indicated he wants to improve relations with traditional United States allies such as the European Union and could strike tariffs on steel and aluminum – imposed by Trump under the pretext of national security, an area where the executive has control – without congressional approval. The case for this move is particularly justified today, as domestic steel prices have exploded due to insufficient supply, in part due to reduced availability of imports due to tariffs. .
Biden could also reverse the Trump administration’s policy on China, although he will have to weigh the pros and cons, both political and economic, of easing relations.
“Our benchmark sees the Biden administration ending the 7.5% tariffs introduced in 2019 on $ 110 billion in consumer imports from China, as a gesture of goodwill and to cut costs for consumers. American consumers, “wrote James Watson, senior US economist at Oxford Economics. a research note.
Biden will also have control over negotiating potential free trade agreements with the EU or the UK, although the Constitution gives Congress the authority in this area.
“Overtime, [Congress] gave fast-track authority to the executive branch, which is an agreement that Congress will not change the trade deal presented to it. Since the 1970s, they have given the president the power to negotiate a deal, and then Congress can vote for or against, ”Rudalevige said.
One of the easiest steps to take legally will be to reverse those pushed into executive actions by Trump, who has not been able to do much business with Congress beyond his agreement. tax reduction.
Having issued 61 so far in 2020, Trump has been the most liberal exponent of Executive Orders in a single year for at least the past 25 years, although by historical standards he has nothing on Franklin D Roosevelt, which has issued more than 3,700 executive orders. during his 12-year presidency, creating entire federal agencies along the way as part of his New Deal to get the United States out of the Great Depression of the 1930s.
By issuing 198 executive orders during his one-term presidency, Trump edged out his predecessor Obama, who issued 276 during his eight-year stay in the White House, although Obama also made extensive use of memoranda. presidential, another tool open to Biden, where the president actually tells an agency to do something using his own power.
For example, after Congress refused to sanction legislation to grant rights to immigrants who entered the United States illegally as minors – the Development, relief and education for foreign minors, or DREAM, Act – Obama used a Department of Homeland Security memorandum to enforce the protections.
Obama also took advantage of proclamations, another tool in the president’s arsenal, to declare national monuments in his last days in office as part of his conservation legacy. More famous, Abraham Lincoln used a proclamation to emancipate slaves in 1863.
“Obama used the Immigration and Nationality Act to [Deferred Action for Childhood Arrivals]. Trump used the same act to pass travel bans. The Clean Air Act is another example; very vague legislation not updated for over 30 years. Obama used this to strengthen climate policy enforcement and then Trump did the opposite of that, ”Rudalevige said.
Biden is advised to use the Clean Air Act legislation to tighten regulations around transportation emission standards.
Another area where Biden may want to test the extent of his powers is the cancellation of the $ 1.7 trillion student debt burden, a project familiar to the left wing of the Democratic Party. Senator Elizabeth Warren, once at the forefront of the Democratic 2020 presidential bid, has offered to write off the first $ 50,000 in debt, arguing that it is legally achievable through the Law on higher education in 1965.
Rudalevige noted that as student loans are the responsibility of the Treasury, the president “has some ability to defer repayment.” Indeed, while the creation of a student aid program would require funding approval from Congress, the law allows the president to rely on the treasury to stop accepting loan repayments, creating the same effect. So far, Biden has not clarified whether he would like to do this.
Owens also highlighted the possibility of using the COVID-19 crisis to expand health care coverage.
“The Department of Health and Human Services, which is part of the executive branch, could immediately – with creative enforcement of existing laws – give all 16.5 million Americans infected with COVID the option to free Medicare coverage, without any new legislation. In doing so, Biden would effectively create a single-payer health care system in the United States, ”Owens said.
In order to lean on government agencies, getting the right people in place will be critical, according to Rudalevige, who noted that Trump’s initial oversight of the importance of key appointments held back his progress. “It’s not just the White House piece of paper, it’s also the tracking on the ground,” Rudalevige said, adding that “implementation is half the game.”
Understanding due process will also be crucial. Trump failed to overturn Obama Dreamer’s legislation, but Rudalevige said it was the result of “sheer incompetence” rather than a lack of executive power, with Supreme Court dismissing the case of Trump because of his procedure rather than his merit.
The Supreme Court’s strong bias in favor of Republicans potentially makes it more likely that legal challenges to Biden’s policies will ultimately succeed. But Rudalevige expects the Biden administration to be better prepared to try to achieve its goals.
“They will be looking at the nooks and crannies of the executive code to see what is possible,” he said.