Biden Gears Up for Another Round of Executive-Order Ping-Pong

J oe Biden has been declared the president-elect, but his chances of getting major legislation through Congress look poor. The Democrats’ margin in the House is slimmer than expected, and even if Democrats win both runoffs in Georgia, the Senate will be a tie. In their best-case scenario, then, Senate Democrats will need to unanimously back any legislation they want to pass without Republican support, with Vice President Kamala Harris breaking the tie. In their worst-case scenario, they won’t be able to do squat without bringing two Senate Republicans on board.

Fortunately for Biden, though, Congress rarely feels like doing its job anyway. Over the years it has simply delegated enormous policymaking powers to the executive branch. So, while he hopes for better results in the 2022 midterms, Biden can occupy himself with another round of executive-order ping-pong, swatting back much of what Trump accomplished and serving some new initiatives of his own as well.

Biden will enter office with a Day-One plan to kill numerous Trump priorities. He’ll put us back in the Paris climate deal and the World Health Organization. He’ll restore Deferred Action for Childhood Arrivals (DACA), allowing many illegal immigrants brought to the country as children to stay without fear of deportation. He’ll make it legal once again for federal agencies to badger their employees with bias training steeped in “critical race theory.” He’ll work to undo Trump’s record of environmental deregulation. And so on.

Republicans don’t have the power to stop any of this with legislation; they’d need veto-proof majorities in both houses of Congress. Putting aside a few Trump moves that have created their own constituencies capable of pushing back politically — such as the ability to buy cheaper, less-regulated health-care plans off the Obamacare exchanges, perhaps — it will be open season on everything the 45th president did exclusively through the executive branch. And if Biden adopts the old Obama “pen and phone” approach, he could break new ground through executive lawmaking too.

The downside to this approach, anyone who’s watched the last twelve years of American politics could tell you, is that executive decisions can be challenged in court. And all federal courts, naturally, lead to the Supreme Court, which is freshly stocked 6–3 with solid Republican appointees. Should this make the Right hopeful? To a limited extent.

There are certainly ways that a president’s actions can run into legal trouble. To start, it’s worth noting that different types of executive policymaking require different amounts of effort. Sometimes a president can just have an underling prepare some text for him to sign, and that’s that. The most substantial executive-branch regulations, however, are often required (via the Administrative Procedure Act, or APA) to go through a lengthy “rulemaking” process that includes detailed analysis and a public-comment period.

This process takes time. And if an administration doesn’t dot its i’s and cross its t’s — or if it runs headlong into a judge who hates the new policy and will take any excuse to get rid of it — the resulting changes can be overturned.

Sometimes, an administration will be tripped up by failing to quite follow the process demanded by the APA. Sometimes, the courts will rule that its decision was “arbitrary and capricious.” Sometimes, executive orders will exceed even the broad powers the president has been delegated by Congress. (This is the case, for example, with DACA. Nothing in the statute books allows the president to exempt thousands upon thousands of people from immigration laws. There’s a very real chance the current Supreme Court won’t let it continue.)

Looming in the background of this discussion is the mother of all conservative legal theories: the nondelegation doctrine, which holds that since the Constitution vests all legislative powers in Congress, the legislature can’t delegate major decisions to the executive. As I noted in a longer piece earlier this year about the doctrine, nondelegation has popped up in Supreme Court decisions once in a while over the years, and five of the Court’s conservatives have either endorsed the theory or hinted that they’re open to doing so in the future.

As I also cautioned, however, we on the right shouldn’t expect the nondelegation doctrine to win us too much before the Court. There are solid historical arguments that Congress is not barred from passing laws that allow other bodies to make big decisions, and even in its prime, the nondelegation doctrine was rarely used to actually void laws. Elena Kagan once warned that “most of government” would be unconstitutional under a strict application of the doctrine, but I really don’t see the Court’s conservatives, some of whom are worried about the tribunal’s legitimacy, taking a chainsaw to the executive branch like they’re playing Doom. At most, I expect, they’ll be playing Operation, using the doctrine to surgically remove a bad organ once in a while.

One of Donald Trump’s biggest achievements — and in this he obviously had lots of help from Mitch McConnell — was to stock both the Supreme Court and the lower courts with solid conservative judges. We conservatives, however, tend not to like judges who simply write their own policy preferences into the law; we insist that judges read laws to mean what they say. Assuming that happens, it will quite rightly stymie some of Biden’s efforts in the coming years, but it will not deny the man his Congress-given right to leave a mark on public policy.

Of course, if we don’t want presidents to write the law, we could always have Congress write it instead. What a novel idea.