Biden’s precarious victory

Opinions on Monday, November 9, 2020

Columnist: Eric posner

2020-11-09

Joe Biden has survived a grueling election campaign and an election on a cliff. Then you must defend yourself against the legal challenges of the campaign of the president of the United States, Donald Trump. While you will most likely enter the White House on January 20, 2021, when you get there you will wonder if the prize you have long sought is a poisoned chalice.

A President Biden will take office facing widespread economic difficulties, the seasonal escalation of a deadly pandemic and a brutal international environment. These challenges would put even the most skilled leader to the test. But Biden will be further hampered by a divided government, a hostile judiciary, a weakened federal bureaucracy and persistent Trumpian populism among the public.

In the past, a newly elected president could expect some cooperation from the opposing party to pass legislation. Biden shouldn’t expect anything of the sort. Republican members of Congress greatly exceeded 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 undemocratic backlash in the 2022 midterm elections. Progressive bills will be dead upon arrival, and much-needed constitutional reforms to the Electoral College, voting laws and the presidency will not occur. Americans are more likely to have to endure sporadic government shutdowns amid a cold civil war that maintains a paralyzed status quo, at best.

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 in a Supreme Court that already leaned more to the right than any court since the 1930s.

Today’s Court will continue to undermine the legal foundations of US regulatory agencies and promote socially conservative values, as it has for the past two decades. Even if Biden can push forward progressive legislation through a divided Congress, he will still face the prospect of the Court overturning it. In fact, the Court could finally deal a fatal blow to the Affordable Care Act, the signature achievement of former Biden boss Barack Obama.

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 skilled personnel, during the Trump era, and will most likely take a long time to regroup. Efforts to undo the damage Trump did to environmental, health and safety regulation will come slowly from exhausted agencies, and all the changes will meet judicial skepticism from Republican-appointed federal judges, and especially those appointed by Trump. .

Similarly, ambitious uses of regulatory and executive power to reform immigration or address climate change (in the model pioneered by Obama) will receive a cold reception in court. Biden will inherit substantial legal authority to take action to contain the pandemic; But Trump-appointed judges will reject when that authority conflicts with religious freedom and property rights, as they already did when governors issued similar orders.

Finally, there is the elusive issue of public opinion. Although Biden won the popular vote, the American electorate remains deeply divided. Trump’s lawsuits alleging voter fraud are unlikely to be successful, but his attempts to persuade Republican voters that the Democrats stole the election will likely have a lasting effect.

If Trump can delegitimize the result in the eyes of enough voters, Biden will have even more trouble securing support for his policies from alienated Republicans and their elected representatives. Additionally, Biden will also face a rogue Democratic coalition that could erupt at any moment in a battle between anti-Trump leftists, moderates and independents.

For all these reasons, Biden will not benefit from the traditional honeymoon period that other newly elected presidents have enjoyed. He ran as a unifier, but, like Obama before him, he will quickly learn that he cannot win over those who despise him.

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 many advantages of tenure, 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 not for nothing else.

About the Author

Eric Posner, a professor at the University of Chicago School of Law, is the author, most recently, of The Demagogue’s Playbook: The Battle for American Democracy from the Founders to Trump.