Formidable obstacles await new US leader
Eric Posner
Joe Biden has survived a gruelling election campaign and a cliff-hanger election. Next, he must fend off legal challenges from US President Donald Trump’s campaign.
While he will most likely enter the White House on January 20, 2021, he will wonder when he gets there, whether the prize he sought for so long is a poisoned chalice.
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A President Biden will enter office confronting widespread economic distress, the seasonal escalation of a deadly pandemic, and a brutal international environment. These challenges would test even the most skilled leader.
But Biden will be further hampered by a divided government, a hostile judiciary, a weakened federal bureaucracy, and lingering Trumpian populism among the public.
In the past, a newly elected president could expect some cooperation from the opposing party in passing legislation.
Biden should expect nothing of the kind. Republican members of Congress largely beat expectations in the election and will see no reason for compromise.
If Republicans retain their majority in the Senate, they can and will try to undermine the Biden administration, to create the conditions for an anti-Democratic backlash in the 2022 midterm elections.
More likely, Americans will have to endure sporadic government shutdowns amid a cold civil war that maintains a status quo of paralysis – at best.
Many of Biden’s nominations will also face hostility in a Republican-controlled Senate.
Having incurred no electoral punishment for their hardball tactics over judicial nominations, they will block and delay all confirmations of federal judges.
Even if Democrats win a majority in the Senate, Biden will face formidable obstacles.
With the confirmation of Amy Coney Barrett a week before the election, Republicans will enjoy a 6-3 majority on a Supreme Court that was already leaning more rightward than any court since the 1930s.
Even if Biden can push progressive legislation through a divided Congress, he will still face the prospect of the Court striking it down.
Indeed, the Court might finally deal a deathblow to the Affordable Care Act, the signature achievement of Biden’s former boss, Barack Obama.
Upward trajectory
With a likely understaffed executive branch and a hostile judiciary, Biden will have trouble exercising executive power.
Federal agencies have suffered a loss of morale – and qualified staff – during the Trump era, and will most likely take quite a while to regroup.
Efforts to undo the damage that Trump did to environmental, health, and safety regulation will come slowly from the depleted agencies, and all changes will be met with judicial skepticism from Republican-appointed – and especially Trump-appointed – federal judges.
Biden will inherit substantial legal authority to take measures to contain the pandemic; but Trump-appointed judges will push back when that authority conflicts with religious liberty and property rights.
There is the elusive issue of public opinion. Though Biden won the popular vote, the American electorate remains deeply divided.
Trump’s lawsuits claiming electoral fraud are unlikely to succeed, but his attempts to persuade Republican voters that Democrats stole the election will have a lasting effect.
If he succeeds in delegitimising outcome in the eyes of enough voters, Biden will have more trouble securing support for his policies from alienated Republicans elected representatives.
That said, Trump’s defeat is a triumph for American democracy. Trump has been the most divisive and destructive president of modern times.
His failure to win a second term, despite the numerous advantages of incumbency, will send a signal to ambitious politicians that populism and demagoguery are not the keys to victory.
The moment should be savored for that reason – if for nothing else.—The writer is a professor at the University of Chicago Law School. This article was first published in Project Syndicate
