The alluring fantasy of Biden ending the imperial presidency
The next president won't reform the presidency. Unless ...
President-elect Joe Biden will be 78 by the time he's inaugurated, which does not preclude the possibility of a second term but hardly makes it likely. And he has not been elected, like President Trump and former President Barack Obama before him, significantly because of his personal appeal to his base. If anything, Biden's relative blandness has been his selling point: "He'll just be normal," was the pitch. He'll take us back to a pre-Trump calm.
These two factors position Biden to do something truly remarkable as president, two recent articles at Politico propose. His quieter charisma and more legislative style of governance "could end the cult of personality that has shadowed the Oval Office for generations," writes John Harris in one story. And his status as a probable one-termer (by choice, not electoral defeat) allows him to "be the first president in modern history to acknowledge that office has become too powerful, and finally scale it back," Zachary Karabell suggests in the second. Boring old Biden could end the imperial presidency.
I hope that happens — these visions of a scaled-down executive branch are exactly my kind of castles in the sky — but I don't think it will. There's little in Biden's record to suggest he has any interest in meaningfully reducing executive power (tellingly, neither Politico article quotes Biden himself), and the anticipated split control of Congress is likelier to send him on the easy course of continuing presidential rule by fiat than the hard path of reform.
There are two key sources for surmising Biden's choices here. One is a set of questionnaires he completed as a candidate in 2019 and 2007, both with journalist Charlie Savage, first at the Boston Globe and then at The New York Times. The contrasts between the two are instructive but not encouraging for anyone looking for a smaller presidency. (Responses from Vice President-elect Kamala Harris, who completed the 2019 questionnaire, were even worse.)
In 2007, for example, Biden said "our founding fathers vested in Congress, not the president, the power to initiate war, except to repel an imminent attack on the United States or its citizens." He emphasized that a "limited" military action undertaken on executive authority is unlikely to look limited to its victims and could easily spiral into a much larger conflict. By last year, however, Biden supported exactly the "limited" executive strikes he'd critiqued 12 years prior.
Likewise, in 2007, Biden said he "would not" use signing statements, which amount to presidential declarations of intent not to enforce parts of a law the president has decided to sign. A president should work with Congress to get legislation he can fully endorse, Biden said, not "use a signing statement to attempt to override a valid act of Congress." In 2019, Biden instead said presidents can use such statements, just not "routinely," whatever that may mean.
Maybe most enlightening of all is a question on the 2019 questionnaire about supporting legislation to limit executive power in 11 ways. Biden backed eight. Two of the three he declined to endorse are curtailing the "[a]bility of a president to declare a national emergency and activate various standby powers, and to invoke national-security exceptions to various legal prohibitions" and permitting the "application of the Freedom of Information Act requests to White House records, which are currently exempt." These are by far the most important of the entire list for limiting the purview of a normal president who isn't prone to the Trump-specific chicanery like hiring his kids and renting hotels to foreign governments. Asked to make substantive changes to presidential power instead of merely precluding himself from things he'd never do anyway, Biden took a pass.
Our other key source of information is Biden's own account of his plans for governance. The president-elect will issue a spate of executive orders as soon as he takes office and reportedly intends to "lean more on executive actions than he had once hoped."
By early this year, before the COVID-19 pandemic was in full swing here in the States, Biden had already developed a long list of "bold action" he would take on "day one" of his administration, which functionally means a list of policies he'd implement without Congress. Some of it will simply be undoing changes his predecessor ordered. Other parts are far more ambitious. An "unprecedented" move to "rally the world" to fix climate change sounds big. So does rewriting the tax code or taking "bold action to ... put us on course to become a 100 percent clean energy economy with net-zero emissions by 2050."
Add to that all the pandemic response and economic recovery stuff and we can probably expect a lot of governance by "pen and phone," to borrow an Obama-era line. Biden's brief dalliance with a national mask mandate — which, however desirable from a public health perspective, simply won't pass constitutional muster — shows the direction he's headed.
Despite all that, I do not put the chance at executive reform under Biden at absolute zero. He has paid (what I am cynically inclined to call) lip service to the notion that democracy requires the president to work with Congress instead of behaving like a dictator. He condemns Trump for abusing the power of his office, which is too narrow a censure but better than nothing. And he may be dealing with a Republican-led Senate, which will include plenty of Republicans who are on record, at length, complaining about the imperial presidency whenever their party is out of power.
Major changes are implausible — I don't think we'll see anything like what I'd want or those Politico stories envision. But there is some recent precedent for Republicans seizing an opportunity to curb Democratic-held executive power. It happened in Wisconsin two years ago, when a lame-duck GOP legislative majority enacted new limits on an incoming Democratic governor and his attorney general. Those limits, which included "block[ing] administrative rules," have mostly held up in court.
Congressional Republicans might similarly jump at an offer of self-imposed limits on a Democratic president, especially if it came early enough to make the next GOP administration feel distant. Biden and his fellow Democrats, for their part, would have to conceive of the task as Trump-proofing the Oval Office.
If such a neat trick could be achieved — if each side could be baited into constraining the presidency by the delicious chance of constraining their opponents — we might see real progress here. But the very fact that they need to be baited is why I'm pessimistic it will happen at all.