Comment: Even without Senate, there’s much Biden can get done

By Daniel Hemel / Special to The Washington Post

Democrats are understandably disappointed that Sen. Mitch McConnell, R-Ky., will remain in charge of Congress’s upper chamber and that their party failed to flip a Senate seat in Maine. These losses sting even more coming just weeks after Justice Ruth Bader Ginsburg’s death and the rushed confirmation of Amy Coney Barrett as her replacement. For Democrats, a week that began with high hopes of a blue wave now ends with party leaders arguing over what went wrong.

But the most powerful position in the world is not Senate majority leader or senior senator from Maine or Supreme Court associate justice. It’s president of the United States. However narrow the win and nail-biting the wait, Democrats secured the main prize. And even with the likely Republican obstruction, President Biden will have the power to effect profound change across large swaths of American society.

Some of these changes will be rhetorical and symbolic; though symbolism can save lives. After nearly a year of a president peddling coronavirus conspiracy theories and quack medical treatments, we will have a chief executive who amplifies the messages of public health authorities. When the president wears a mask, millions of Americans may follow his lead, protecting themselves and their vulnerable neighbors. The potency of having a female vice president, with African American and Indian American heritage, also should not be underestimated: Kamala Harris may inspire children who will see that one can rise to power in the United States without being white or male. But the fruits of a Biden-Harris administration won’t be purely symbolic. They’ll be deeply substantive.

The most pressing challenge facing the incoming administration is likely to be the delivery of a coronavirus vaccine. We don’t know when a vaccine will arrive, but when it does, the distribution effort will present a logistical challenge unlike any the federal government has faced since World War II. Officials will have to deploy extraordinary administrative expertise and inspire widespread public confidence. Both of those tasks will be much easier under a president who staffs his agencies with professionals and who takes seriously the lessons of science, rather than a president who prizes loyalty over competence and who stokes anti-vaxxer sentiment.

President Biden — not Majority Leader McConnell — will be in charge of this effort, though Biden is likely to put public health officials front and center instead of seizing the limelight like his predecessor. His administration won’t even be dependent upon Congress for further funding, as the Cares Act, passed in March, already provides the necessary resources.

It’s Biden who will make the tough decisions that vaccine distribution demands. Existing contracts between drugmakers and federal agencies provide that if the companies develop a safe and effective vaccine, the federal government has the option to buy up to 600 million doses, nearly enough for the entire population, if each person needs two doses. But who should be inoculated first: schoolchildren or seniors? Should high-prevalence states get priority over the rest of the nation? Biden will be responsible for those choices, as he will be overseeing the shipment and storage of vast quantities of vaccine that must remain within precise temperature ranges across thousands of miles. That President Biden, not President Trump, will supervise these efforts greatly raises the chances that in relatively short order, classrooms will be full again, children will be able to see their grandparents, and millions of workers will leave the unemployment rolls.

Biden’s election will have other far-reaching implications for the pandemic response. The Trump administration has worked hard to silence scientists at the Centers for Disease Control and Prevention. Biden will ungag the agency and begin restoring credibility to what was once the world’s foremost public health organization. He can also make better use of the CDC’s powers. The Public Health Service Act of 1944 grants the CDC broad authority to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases” from state to state. The Trump administration has largely passed the buck to state leaders. But if governors like Kristi Noem, R-S.D., refuse to mandate masks or close bars while infections surge in their states and spill across borders, an emboldened CDC could impose common-sense public health measures in those places.

Global warming will be another defining challenge for the Biden administration. On this front, too, Biden can do a lot that doesn’t require McConnell’s buy-in. On the day of his inauguration, Biden can return the United States to the Paris climate accord and recommit the nation to cooperative emissions-reduction efforts. And in the weeks and months afterward, he can initiate bold executive actions that slash U.S. greenhouse gas output and improve the prospects for our planet.

The largest share of U.S. emissions arises from the transportation sector — with most of that coming from cars and trucks — and Biden will have the power to make America’s vehicle fleet significantly more fuel efficient. The Energy Independence and Security Act of 2007 requires the Transportation Department to set automobile fuel economy standards at the “maximum feasible” level. The Obama administration set an ambitious target of 54.5 miles per gallon for cars and light-duty trucks by model year 2025, but the Trump administration nixed that goal. Biden could restore, or potentially go beyond, the Obama-era benchmarks. This wouldn’t require action by the Senate, and even a conservative Supreme Court is unlikely to second-guess well-crafted fuel economy regulations.

After transportation, the next largest source of greenhouse gas emissions is electricity. Here, too, Biden can make real headway. The Supreme Court — in an opinion written by Justice Antonin Scalia, Barrett’s late boss and mentor — acknowledged that greenhouse gases are a pollutant subject to regulation under the Clean Air Act, and it agreed that Obama’s Environmental Protection Agency could require power plants to use the “best available control technology” to cut carbon emissions. The Trump administration watered down Obama-era greenhouse gas rules, but a Biden EPA could reinstate and tighten them.

The Senate is also powerless to block important measures that would restore humanity to our immigration system. Biden can raise the cap on refugee admissions from the current cruel level of 15,000 back to the 110,000-person ceiling in the last year of the Obama administration, if not higher. (The Immigration and Nationality Act requires administration officials to engage in “appropriate consultation” with lawmakers before setting the yearly cap, but there is no requirement that Congress sign off on the president’s decision.) Biden also can act on his own to reduce deportations, reunite migrant families and preserve the program that protects hundreds of thousands of “dreamers” who came to the United States as children.

None of this is to deny the Senate’s importance. A Republican-majority Senate can stall the confirmation of some of Biden’s Cabinet and sub-Cabinet-level nominees (though, as we have learned under Trump, an administration can largely survive with unconfirmed “acting” officials in key posts). A GOP-controlled Senate will make it difficult for Biden to fill judicial vacancies. It will certainly make it harder for him to enact some of his platform planks, such as a public health insurance option. Other proposals — including massive investments in clean energy and an expansion of the child tax credit — could plausibly pass the Senate even under Republican leadership, although negotiations will be tough.

Would it have been nice if Biden’s margin of victory were a few percentage points wider, delivering a more resounding repudiation of Trumpism? Sure, and it would have been nice if several more Republican senators who aided and abetted Trump had lost their jobs as just deserts. But in the American system, even a president who wins by a hair sets the national agenda; whether or not his party controls the Senate. Once the anxiety of the week subsides, Democrats should begin to see how much they have to celebrate and just how much the Biden administration can accomplish.

Daniel Hemel is a professor at the University of Chicago Law School.