“It’s a balancing act, but I’m optimistic we can get a lot of things that I’d like to do done [through legislation], even if they’re on the cusp of whether they’re in the executive’s power," the president-elect said. “I’ve spent most of my career arguing against the imperial presidency, from the time I started writing about that back when I was in my first term in the United States Senate. We’ve got three equal branches of government.”
Indeed, if you read news accounts from the 1970s, you will discover that lamenting the growth of executive power was one of the young senator’s favorite topics during the post-Watergate years, when the country was still in a state of shock from the abuses of then-President Richard M. Nixon.
On July 27, 1974, Pennsylvania’s Scranton Tribune printed a particularly lively account that began: “Scranton’s ‘native son’ U.S. Senator from Delaware had 300 Elks Club members and their guests on the edge of their seats seemingly dumbstruck Friday as he called for a return of this country to the republic as it was founded and for the end of the ‘imperial presidency.’”
In the first six months of his own presidency, however, Biden has been even more active than most of his recent predecessors in taking executive actions. Last Friday, he issued a sweeping order directing a dozen agencies to explore 72 initiatives that he claimed could boost competitiveness in industries — from hearing-aid makers, to airlines, to tech companies — that are dominated by only a few major players.
The most obvious reason that Biden is flexing his executive muscles is the gridlock and deep partisanship that he confronts on Capitol Hill, where Democratic majorities are razor-thin.
One of the central premises of his candidacy for president was that it was still possible to find support across the aisle for legislation that addresses the country’s most pressing and obvious needs. How deep that divide really is was made obvious in March when he and Democratic leaders were forced to push through a $1.9-trillion covid relief measure on Democratic votes alone.
The acid test, however, will come as soon as the next few weeks, when the fate of the deal that he struck with a handful of Republican senators for a $1 trillion infrastructure package will be determined.
More than politics is at work here. The government operates very differently than it did when Biden first came to Washington.
“The change between the ’70s and now is that so much of significance happens in the regulatory process, not the legislative process,” says Elaine Kamarck, who heads the Brookings Institution’s Center for Effective Public Management and who managed the Clinton administration’s government-reinvention initiative when she worked for then-Vice President Al Gore.
Back then, for instance, the environmental movement was in its infancy; now, many of the most titanic regulatory battles happen in that arena.
The legislation that Congress passes to guide all the regulatory agencies tends to be vague — purposefully so, Kamarck says, so that they can keep up with technological advances and other forces that can render inflexible laws obsolete. From education to health care to communication, direction to the agencies often comes from the top of the executive branch, not only through executive orders but also by less formal proclamations and memorandums that have legal force.
Of course, one reality of using executive power is that what can be done with a stroke of a pen by one president can usually be undone just as easily by his successor. In Biden’s first two weeks in office, he took 16 executive actions directly reversing one or more of former president Donald Trump’s policies.
The judiciary also has a say in how far any president can go. According to the Institute for Policy Integrity at New York University School of Law, of the nearly 260 deregulatory and other actions of Trump’s administration that were challenged in court, three-quarters were either struck down or withdrawn by the agency in question after it was sued.
This is not the presidency as that young senator in the 1970s might have envisioned it, or even as Biden was so confident that it could be when he took office. But yes, it is still what he called “a balancing act” — one that continues to tilt more and more in favor of the executive branch, which means policies that take sharp turns every four or eight years.