Executive Power After Trump

A split government could present the Biden administration with some hard choices about the scope of its own authority.

This article is part of Election 2020: America Votes, FP’s round-the-clock coverage of the U.S. election results as they come in, with short dispatches from correspondents and analysts around the world. The America Votes page is free for all readers.

Democratic presidential candidate Joe Biden speaks at a rally at the University of South Carolina in Columbia on Feb. 29.
Democratic presidential candidate Joe Biden speaks at a rally at the University of South Carolina in Columbia on Feb. 29. Scott Olson/Getty Images

When Joe Biden takes office as U.S. president in January 2021, he may well be presiding over a divided government. Although the situation is not yet certain, Republicans seem on track to maintain control of the U.S. Senate by a razor-thin margin. If they do—and if Senate Majority Leader Mitch McConnell continues the tack he pursued through much of the administration of former President Barack Obama—it will most likely mean a hold on the Democrats’ legislative agenda, as well as persistent challenges to the Biden administration’s ability to govern effectively. So hamstrung, Biden might turn to executive orders and other executive measures, raising new questions about a perennial issue: the proper scope of executive power.

A bit of hypocrisy around questions of executive power is a well-worn American tradition. Both parties tend to criticize it when out of power, only to find new and creative ways to wield it once they take the White House. This reflects the simple truth that the president does have broad executive authority in practical terms, especially when it comes to foreign affairs and national security. Such power isn’t necessarily hard-wired into the office by the Constitution. Rather, it most often reflects the fact that, over the years, Congress has delegated much of its relevant authority to the president, either expressly through statutes or implicitly through acquiescence to executive initiative. The courts have generally resisted second-guessing how presidents use these authorities, at least so long as those leaders don’t transcend any clear limits put in place by Congress. In turn, successive administrations have had broad leeway to implement their domestic- and foreign-policy agendas, at least so long as they don’t push hard enough to trigger a congressional backlash.

During its tenure, the Obama administration used executive authority to great effect on a number of fronts. Major diplomatic accomplishments such as the Paris Agreement and Iran nuclear deal blended political commitments and executive agreements in a manner that largely avoided the need for the Republican-controlled Senate to sign off. Similar creative lawyering provided a legal justification for military action in Iraq, Libya, Syria, and elsewhere, even where Congress declined to provide express authorization. And like his predecessors, Obama used his expansive statutory authority to impose an array of sanctions around the world through emergency declarations.

The trade-off, of course, was that reliance on executive authority alone made these sorts of policies only as durable as the presidential administration that supported them—a consequence made clear by President Donald Trump’s administration’s subsequent reversal of many of Obama’s most valued initiatives.

After four years of Trump, Biden has reason to think about some of executive authorities a bit differently.

In the face of an uncooperative Senate, the Biden administration may be tempted to look to Obama’s uses of executive authority as a blueprint for pursuing its own foreign-policy goals. But after four years of Trump, Biden has reason to think about some of these authorities a bit differently.

As president, Trump pushed the outer limits of his executive authority to an extent few prior presidents have matched. While Obama largely sought to maintain the internationalist foreign policy that has been the subject of a bipartisan consensus for most of the post-World War II era—and typically provided a credible legal case for his actions—Trump decidedly did not. In areas ranging from immigration to arms sales to trade to treaty withdrawal, Trump used aggressive interpretations of statutes and his own constitutional authority to disrupt core tenets of the United States’ position in the world and the broader international system. Officials often obfuscated the questionable legal bases for the administration’s actions, even as they engaged in legal brinkmanship with the courts and other institutions. And objections in Congress—including in the president’s own party—never posed a serious threat, thanks to Trump’s veto power and strong support from most of the Republican Party.

As a result, the only meaningful limit on many of Trump’s most disruptive policies was the election he has now lost. If not for that, no one knows where his policies might have led—an exit from NATO, the removal of troops from Europe, or even a shooting war with Iran.

Come January, whether Republicans control the Senate or not, the incoming Biden administration will be in a good position to reverse most of the Trump administration’s signature policies through executive action. But in many ways, the damage has already been done. The United States’ ability to make durable policy commitments across presidential administrations—a keystone of the post-World War II international order—has been cast into serious doubt. And there’s not much reason to think that doubt is misplaced, as the results of the 2020 election strongly suggest that Trumpism is here to stay even though Trump lost. At some point, Biden may well be succeeded by another whose combination of nativism and populism is hostile to the United States’ role in the international system. If the status quo of executive power remains in place, that future president will be just as equipped to disrupt that system, perhaps irreparably.

There are ways to protect against this outcome. Congress can set clear statutory limits on the president’s authority to withdraw from major treaties, initiate large-scale wars, and cut off trade relationships, and it can set up other guardrails that prevent future presidents from steering the United States too far off the road. An engaged and supportive Biden administration could help ensure such limits do not encroach too far on the substantial discretion that presidents genuinely need to effectively manage U.S. foreign policy. While the Biden campaign generally focused on improving transparency around executive power, other Democratic presidential candidates voiced support for more structural reforms, suggesting an appetite for them within Biden’s coalition. At times, Republicans too have argued for similar reforms.

The political dynamics of divided government, however, are likely to be a major obstacle to reform. A Republican-controlled Senate aimed at obstructing the Biden administration would substantially raise the cost of pursuing any sort of action through Congress. Meanwhile, the Biden administration will have a long list of nominees, legislative objectives, and other items it needs to secure before turning to any such reform package, making it a lower (or at least later) priority. And Democratic officials who feel under siege from congressional Republicans may understandably hesitate to give away any more power.

But these dynamics aren’t inevitable. As president, Biden, for example, could ultimately prove more successful at persuading McConnell to negotiate—or McConnell may be less confident that complete obstruction will yield positive political dividends—than during the Obama administration. Alternatively, the Biden administration and congressional Democrats could simply decide that reforming the executive branch—not just in regard to executive power, but also on ethical and good governance issues—warrants top billing after Trump and is worth the political time and effort likely to be required.

Regardless, it is unlikely that embracing executive power would be as easy a choice for Biden as it was for his predecessors. True, he could use it to reverse some of Trump’s most problematic policies while advancing some of his own, and there is little reason to think he should hesitate so long as he acts in good faith with the law. But after Trump, the costs of leaving the status quo in place are far less hypothetical than they may once have seemed. And that may demand a different approach if Biden is intent on leaving the country on more solid ground than he found it.

Update, Nov. 7, 2020: This article was updated after Democratic nominee Joe Biden was declared the winner of the 2020 presidential election.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

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