The US is going backwards with Trump

Joe Biden's Legislative Initiative: Roll Backwards After Four Years of Trump

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Guest contribution by Prof. Dr. Niels Petersen

20.01.2021

By means of presidential ordinances, the new US President Joe Biden wants to reverse many of the measures taken by his predecessor Trump. How far the presidential powers reach and where it gets bumpy is explained Niels Petersen.

Joseph Robinette Biden is inducted into office as the 46th President of the United States today, Wednesday. Even if most eyes are currently on the impeachment process against the previous incumbent Donald Trump, Biden is planning a real legislative offensive in the first days after his inauguration. He wants to signal a clear cut to the Trump era and reverse a large part of the agenda of his predecessor.

It just doesn't have much to do with "legislation" in the true sense of the word: the initiative will primarily not come from the US Congress, i.e. the institutional legislature, but rather through presidential decrees.

The crux of the matter is that people in America are rarely in agreement

The advantage of this executive legislation is obvious: After the runoff elections in the state of Georgia, the Democrats have a slim majority in both the House of Representatives and the Senate. However, that doesn't mean they can rule through Congress. A large part of the legislation in the Senate requires due to the institution of the so-calledFilibuster in fact a 60 percent majority. That means that in most cases the Democrats would also have to convince ten Republican senators of the merits of their legislative proposals. In view of the increasing polarization of the political process in the USA that has been observed for years, this will probably only succeed in exceptional cases - if at all.

But even in those cases where an exception applies and a majority with 50 votes and thattie-breaker by Vice President Kamala Harris is sufficient, there must be unity among all Democratic Senate members - and that is not a matter of course. A senator like Joe Manchin in conservative West Virginia has different interests and constraints than many of his party colleagues from liberal states. In any case, the negotiations in Congress take up a lot of time and require compromises, some of which are painful. A legislative offensive can fizzle out so quickly.

In this respect, legislation by means of a presidential ordinance is attractive. Joe Biden would not be the first President to use this tool. In recent decades, presidential ordinances have become enormously important due to the increasing political blockade of Congress. Most recently, Donald Trump issued a series of ordinances - more than 200 in one term, almost as many as his predecessor Barack Obama in twice the time (276).

The Supreme Court has so far barely curbed the US president

Art. II of the US Constitution is the basis of the presidential authority. After that, executive power rests with the president. He is also responsible for the proper execution of the law. In particular, the president can instruct administrative agencies how to carry out laws. These instructions can be quite extensive. At the time, for example, Obama had enacted regulations on the fuel consumption of vehicles, the regulation of drones, the energy efficiency of household appliances and the administration of federal coal programs. A president also regularly instructs the migration authorities on how to implement legal entry requirements and how to deal with illegal immigrants. And finally, a US president traditionally has extensive powers in the field of foreign policy.

The US Supreme Court has so far held back when it comes to reviewing presidential ordinances. So he clears the executive under the so-called Auer doctrine (after the fallAuer v. Robbins from 1997) a large margin of discretion in the implementation of laws. In addition, he confesses to the executive under the so-called chevron doctrine (afterChevron v. Natural Resources Defense Council from 1984) allows for a large amount of judgment when interpreting legal norms that are open to interpretation.

It is true that there have been increasing signs in the US Supreme Court in recent years that there is a tendency towards greater control of the executive branch. However, we have to wait and see to what extent these tendencies can prevail. It is possible that a democratic president is the reason that the now predominantly conservative court needs to significantly reduce the scope of the presidential authority.

Biden will be able to reverse Trump policy quite reliably

In any case, Joe Biden is on relatively safe legal ground as far as he is concerned with turning back the politics of the Trump administration. With the exception of the tax reform and the pandemic-related economic stimulus programs, no major legislative projects have been successful in the past four years. Rather, President Trump has largely ruled through presidential ordinances. Biden can now withdraw or amend this relatively easily by means of ordinances.

It is expected that Biden, for example, the so-called.Muslim Travel Ban takes back and puts many of the environmental and climate protection measures that Trump had overridden back into effect. In addition, he will probably rejoin the Paris climate protection agreement and reverse his exit from the WHO. Finally, the new president has announced that he will be active in combating the corona pandemic. However, he cannot freely switch and rule here because many of the possible measures to combat pandemics are in the competence of the individual states. In the opinion of his advisors, Biden cannot, for example, issue a general mask requirement. But he can at least order a mask requirement on all properties owned by the federal state.

In order to implement his ambitious agenda, Biden will ultimately not be able to limit himself to regulations. Rather, the implementation of many of its goals requires legislation by Congress. For example, Biden plans to adopt a new economic stimulus program to combat the economic consequences of the pandemic in the first few weeks of his term in office. In addition, he would like to bring a reform of the immigration legislation on the way relatively quickly. After all, he is also dependent on Congress for one of the most important challenges of his presidency, an effective fight against climate change. In this respect, presidential ordinances may bring quick successes. However, these remain limited in their range. For the structural change that is necessary, Biden will not be able to avoid negotiations with the legislature.

Prof. Dr. Niels Petersen holds the chair for public law, international and European law and empirical legal research at the University of M√ľnster and is co-director of the Institute for International and Comparative Public Law.