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Joe Biden is hoping to lead in a manner that, unlike his recent predecessors, leans more on legislation and less on signing executive orders. But he may not have a choice.
A pen rests on a notebook as President Trump prepares to sign an executive order in the Roosevelt Room of The White House.
IN JOE BIDEN'S HALCYON early days in the Senate, laws were made by two branches of government. The White House had its ideas, Congress had theirs, and the final product was hashed out in late-night negotiations followed by press conferences where lawmakers congratulated each other on their ability to compromise for the greater good.
That is not the environment the president-elect faces as he prepares to take office Jan. 20. Congress has become unabashedly uncooperative, and presidents have resorted to doing things on their own. In former President Barack Obama's case, the use of executive authority – blasted by outraged Republicans – was driven by a frustration with Congress. In President Donald Trump's single term, the use of the presidential pen and executive rule-making authority – blasted by outraged Democrats – reflects Trump's own CEO background: As a businessman, he made the rules, and others followed them.
Biden insists Washington can return to days of bipartisanship and seems constitutionally disinclined to wield executive power for its own sake. But he may have no choice, experts say. And he has many opportunities to make policy changes without input from the branch of government where he served more than three decades.
Because of "his personality, his background as a senator, I would expect him to be careful in terms of pushing executive power too far," says American University government professor Chris Edelson, author of the book "Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror." "There are dangers for presidents who act unilaterally. Presidents are on their best footing when they act with Congress. The president is not a king," and cutting Congress out of the equation undermines democracy, Edelson says.
But Biden may well find his writing hand forced, policy analysts and advocates say, with an unhelpful Congress leaving him no other option than to issue executive orders and make rules changes.
Much of it is simply undoing what Trump did by executive action. The sitting president is leaving a big footprint on American domestic and foreign policy, but very little of it was done with Congress. Aside from the 2017 tax cut and hundreds of judicial appointments, the bulk of Trump's agenda was done unilaterally. Anything Trump did with his quill, presidential experts note, can be undone by Biden in the same way.
The president-elect has already indicated the big-ticket changes he will make with the stroke of a pen. He'll rejoin the Paris accord on climate change, making a dramatic statement about America's commitment to the issue as well as furthering an international approach to solving the crisis.
The president-elect has also pledged to rejoin the World Health Organization, not only re-upping U.S. funding for the international organization in the middle of a pandemic but sending a strong signal about America's role on the world stage. Trump, alleging China lied to WHO about its fault in the start of the pandemic, formally announced the U.S. withdrawal from the organization in July. Because of a mandatory notice period, the move would not take effect until 2021.
Biden is expected to undo the so-called global gag rule, which prohibits federal finding to family planning groups abroad that provide abortions or even discuss pregnancy termination as an option. He also has pledged to restore the Deferred Action for Childhood Arrivals program that allowed protections for eligible children of adult immigrants who came to the country illegally.
Biden is also expected to reverse bans on nearly all travel to the U.S. by residents of six countries, several of them predominantly Muslim.
He has pledged to issue an executive order on White House ethics, preventing Biden administration officials from being influenced by their personal financial holdings.
Other changes are less sweeping or more targeted but can have a big impact on some people's lives.
For example, Trump signed executive orders putting added burdens on federal employees' unions, imposing stricter deadlines for negotiating collective bargaining agreements and limiting on-the-clock time for union activities. Biden could easily undo those rules with his own executive orders.
Biden has also pledged to sign an executive order creating a task force assigned to help reunite parents with immigrant children separated from them at the border.
In the area of health care, Biden could do a lot, unilaterally, to reverse the moves Trump made to undercut the Affordable Care Act, says Aviva Aron-Dine, vice president for health policy at the Center on Budget and Policy Priorities. For example, Biden could extend the special enrollment period for sign-ups onhealthcare.gov (the current deadline is Dec. 15) and make a more aggressive effort to inform the public of the cutoff date.
Biden can also use the waiver process to encourage states to expand Medicaid, the program that provides heath care coverage to the poor and disabled, Aron-Dine says. The Trump administration has issued waivers, such as work requirements for people who qualified for Medicaid under the ACA expansion of the program, that have the effect of shrinking the program, but Biden could take the opposite approach, she says. And the center has a website, sabotage watch,giving the incoming administration a handy blueprint for Trump health care policies it can undo.
"It's not national policy, but it could be a huge deal" to people in states that apply for and receive the waivers, Aron-Dine says. "There is a lot a president can do administratively that has a big impact on people's lives."
In the area of LGBTQ rights, Biden can unilaterally lift the ban on transgender people serving openly in the military, says Alphonso David, president of the Human Rights Campaign. Biden could also direct federal agencies to fully implement the Supreme Court's summer 2020 Bostock decision, which says transgender people are protected under sex discrimination laws. The Trump administration has found ways around that ruling for some programs, such as homeless facilities and school sports, David says.
On reproductive rights, Biden could make changes without Congress – but they might take longer if the administration has to go through the formal rule-making process. They include the domestic gag rules, which ban Title X family planning cash to entities which perform abortions or make referrals for abortion. Biden could also reverse Trump Health and Human Services Department rules that weakened Obama-era policy requiring employers to offer birth control coverage under the ACA.
"President-elect Biden and Vice President-elect (Kamala) Harris made clear their intention to use executive action to protect and expand reproductive freedom," says Amanda Thayer, a spokeswoman for the pro-abortion rights groups NARAL. The chance to undo the long list of rules and guidance chipping away at abortion access "could not come soon enough," she says.
On immigration, the Biden administration can undo policies that make it harder for people to get and keep green cards. For example, Biden has committed to eliminating the Trump "public charge rule," which requires green card-seekers to prove they have sufficient income and health insurance, lawyers for the firm Dorsey & Whitney said in a detailed webinar on the impact the departure of Trump will have on immigration. Biden could also ease the process of applying for and extending visas, they said.
In housing, Biden could use executive power under the pandemic emergency to extend a ban on evictions for nonpayment of rent, says Doug Rice, a housing senior fellow at the Center on Budget and Policy Priorities. Biden could also drag out implementation of a Trump rules change that precludes transgender people from housing anti-discrimination protections.
Biden could also reinstate Obama rules making it easier to go after a community for housing discrimination, setting a "disparate impact" standard instead of intent to discriminate, Rice says. It would take the same lengthy rule-making process to change it that Trump used to undo the Obama policy, but the Biden administration can do it, he says.
Biden is likely to face an even rougher road than Obama did in trying to pass gun control measures through Congress, experts say. But he can still do some things on his own. Everytown for Gun Safety has issued a detailed list, including shutting down the "ghost gun" market by making sales of gun parts and assembly kits subject to existing background check law.
Biden "said he will reach out to Republicans," Edelson notes, but that won't mean anything "if Republicans remain a power that rejects democracy."
Biden, like his predecessors, may well end up stretching the limits of executive power.