When Joe Biden takes office as U.S. president in January 2021, he may preside over a divided government. Although the situation is not yet certain, the Republicans appear to be on the right track in maintaining razor-thin control of the US Senate. If so – and if Senate Majority Leader Mitch McConnell continues the course he has taken during much of former President Barack Obama's administration – it will most likely mean a halt on the Democratic legislative agenda as well as ongoing challenges for the government of Biden's ability to govern effectively. With this hindrance, Biden could turn to executive orders and other executive measures and raise new questions on a multi-year topic: the right amount of executive power.
A bit of hypocrisy about executive power is a worn-out American tradition. Both parties tend to criticize it when they are not in power, only to find new and creative ways to use it once they take over the White House. This reflects the simple truth that, in effect, the president has broad executive powers, especially when it comes to foreign affairs and national security. These powers are not necessarily linked to office in the constitution. Rather, it mostly reflects the fact that over the years Congress has delegated much of its pertinent powers to the President, either expressly by statute or implicitly by consenting to the executive initiative. The courts have generally refused to guess how presidents use these agencies, at least as long as these leaders don't cross clear boundaries set by Congress. In turn, successive administrations had ample leeway to implement their domestic and foreign policy agendas, at least as long as they didn't press hard enough to trigger a backlash from Congress.
During her tenure, the Obama administration used executive power to great effect on a number of fronts. Major diplomatic achievements such as the Paris Agreement and the Iranian Nuclear Deal blended political commitments and executive agreements in a way that largely obviated the need for signature by the Republican-controlled Senate. Similar creative advocacy provided legal justification for military action in Iraq, Libya, Syria and elsewhere, even when Congress declined express permission. And like his predecessors, Obama used his extensive legal authority to impose a range of sanctions around the world through emergency statements.
The compromise, of course, was that trust in executive power alone made this type of policy only as permanent as the presidential administration that backed it – a consequence that is evident from the later reversal of many of Obama's most valuable initiatives by President Donald Trump's administration has been.
In the face of an uncooperative Senate, a potential Biden administration might be tempted to view Obama's use of executive power as a blueprint for pursuing its own foreign policy goals. But after four years of Trump, Biden would have reason to view some of these authorities a little differently.
As president, Trump has exceeded the outer limits of his executive powers to an extent that few previous presidents have achieved. While Obama tried largely to uphold internationalist foreign policy, which was the subject of bipartisan consensus – and usually a credible legal ground for his actions – for much of the postwar period – Trump decidedly did not. In areas ranging from immigration to arms sales and trafficking to contract withdrawals, Trump used aggressive interpretations of statutes and his own constitutional authority to disrupt the fundamental principles of the United States' position in the world and the broader international system. Officials often obscured the questionable legal bases for the administration's actions, even when dealing with courts and other institutions. And objections in Congress – even 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 for many of Trump's most disruptive policies was the election, which he is now likely to lose. Without that, no one knows where his policy could have led – leaving NATO, withdrawing troops from Europe, or even a gun war with Iran.
Whether or not Republicans control the Senate, a new Biden administration in January 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 lasting political commitments between presidential administrations – a cornerstone of the international order after World War II – has been seriously challenged. And there's not much reason to believe that doubts are out of place, as the mixed results of the 2020 election strongly suggest that Trumpism will persist even if Trump loses. At some point, President Biden may be replaced by another whose combination of nativism and populism is hostile to the role of the United States in the international system. If the status quo of executive power persists, this future president will be equally equipped to possibly irreparably disrupt this system.
There are ways to protect yourself from this outcome. Congress can empower the president to withdraw from important treaties, wage major wars and cut trade ties, set clear legal boundaries and other guard rails to prevent future presidents from distracting the United States too far from the road. A committed and supportive Biden administration could help ensure that such limits do not encroach too far on the substantial discretion presidents really need to effectively manage US foreign policy. While the Biden campaign generally focused on improving transparency regarding executive power, other Democratic presidential candidates advocated further structural reforms, suggesting an appetite within the Biden coalition. At times, Republicans have advocated similar reforms.
However, the political dynamism of a divided government is likely to be a major obstacle to reform. A Republican-controlled Senate aimed at obstructing a Biden administration would significantly increase the cost of any kind of action by Congress. In the meantime, the Biden government would likely have a long list of candidates, legislative goals, and other items that it needs to secure before moving on to such a reform package, making it a lower (or at least later) priority. And Democratic officials who feel besieged by Republicans in Congress can understandably be reluctant to surrender more power.
However, this dynamic is not inevitable. For example, if President Biden could ultimately prove more successful in persuading McConnell to negotiate – or McConnell may be less confident that complete obstruction will bring positive political dividends – than he was during the Obama administration. Alternatively, a Biden administration and Congressional Democrats could simply decide that executive reform – not just on executive power but also on issues of ethical and good governance – warrants top reckoning to Trump and is worth the political time and effort that is likely required.
Regardless, assuming executive power is unlikely to be as easy for President 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 believe that as long as he is acting in good faith with the law, he should hesitate. But after Trump, the cost of maintaining the status quo is far less hypothetical than it once appeared to have been. And that might require a different approach if Biden intends to leave the country on firmer ground than he found it.