by Jeevan Shemar
As a result of the 2020 presidential election¹ in the United States of America, Joe Biden² was elected to be the 46th President of the US³. Owing to the position of the US as the world’s second biggest emitter of greenhouse gases⁴ and its status as the biggest economy in the world⁵, its approach to environmental policy will have significant implications in relation to the climate crisis⁶. Therefore, as head of government of the US⁷, Biden’s environmental policy platform, and the political reality of its implementation, will be important factors in determining how the climate crisis is tackled.
Biden has pledged that, as President, he will attempt to implement his environmental policy agenda by working with the United States Congress⁸ (composed of the House of Representatives⁹ and the Senate¹⁰) to pass relevant legislation.
Owing to the political and mathematical realities of the power that Biden will have over Congressional law-makers¹¹, he may feel the need to utilise executive orders¹² in order to implement his policy platform — enabling him to enact proposals that would not be approved by Congress.
However, any Congressional legislation and Presidential executive orders will be subject to the scrutiny of the Supreme Court of the US¹³, which ultimately has the power to invalidate both legislation and executive orders. This means that Biden may encounter opposition to his policy agenda to the extent that very little, or even none, of it is implemented.
House Of Representatives:
In the 2020 US House of Representatives elections¹⁴, the Democratic Party¹⁵ (the party represented by Biden in the 2020 presidential election) won a majority of seats¹⁶. This means that it is likely that the House will be willing to work with Biden in the implementation of his policy agenda.
Given that the Democratic majority is slim¹⁷, if a small number of Democrats abstain on or vote against his policies then those policies might not pass. In general, Biden will likely be able to implement his proposals, but relatively limited opposition to them may be enough to ensure that they do not receive Congressional approval.
In addition to the challenges that Biden will face in the House of Representatives, he may also face opposition to his policy agenda in the upper house¹⁸ of Congress — the Senate.
As a result of the 2020 Senate elections¹⁹ and the 2021 Senate elections in Georgia²⁰, no party has a majority of legislators in the US Senate. This means that, if a vote is tied, the Vice-President of the US²¹ (through their position as President of the Senate²²) casts the tie-breaking vote²³. As Biden chose fellow Democrat Kamala Harris²⁴ (former Senator for California²⁵) to be his running-mate²⁶ in the 2020 Presidential election, she was elected Vice-President and will thus be the tie-breaking vote. Consequently, Biden will be able to command a majority of legislators in the Senate — along with his majority in the House of Representatives —meaning that he can control both the executive²⁷ and the legislative branch²⁸ of the US. As a result, it may seem that Biden should be able to enact his policy programme.
However, not all Democrats view eye-to-eye. More conservative Democrat Senators such as Joe Manchin²⁹ have already been willing to publicly disagree³⁰ with Biden’s support for increased coronavirus stimulus cheques³¹ — despite the policy otherwise being supported by Democratic congressional leaders³². This break from the party line shows that it only takes one flip for the Democrats to lose the majority. Thus, Biden may face opposition again, from Democratic congresspeople, if he tries to get Congress (and, in particular, the Senate) to approve policies that are less widely supported.
Owing to the opposition that Biden’s environmental policy agenda may face in Congress, he might issue executive orders³⁶ in order to enact his proposals. An executive order is a written statement, made by the President of the US, that receives its legitimacy from the Constitution of the US³⁷. Executive orders enable presidents to implement elements of their policy platforms unilaterally, without requiring Congressional approval.
They may be particularly useful to Biden as President because, immediately, he will have to navigate tight Congressional majorities and, following the Midterm Elections³⁸ (due to take place in 2022) he may not command majority support in either house of Congress at all.
However, there are generally two restrictive factors that affect the issuing of executive orders — political considerations and legal limitations. Political considerations relate, among other aspects, to public opinion³⁹ and favourability among the electorate; generally, a President is unlikely⁴⁰ to implement a policy that is universally unfavourable among voters. Legal limitations, in large part, relate to the inability of executive orders to defy Congressional authority to make the laws⁴¹ and to the jurisdiction of the judiciary to invalidate executive orders⁴². This means that Biden cannot use executive orders as a means of implementing policies that have been rejected by Congress, or that the judiciary deems to be unconstitutional.
Supreme Court Of The United States:
The Supreme Court of the US⁴³, the highest court in the US legal system⁴⁴, has the power to review and invalidate⁴⁵ both executive orders issued by the President and legislation passed by Congress. The Court’s power to strike down legislation and executive orders that it deems to be unconstitutional⁴⁶ means that the Court is able to render them as having no effect.
The Court is composed of nine judges⁴⁷ who are nominated by the President⁴⁸ and confirmed by the Senate⁴⁹. Owing to the power of the Court to nullify legislation and executive orders, the political ideologies of the Court’s judges are often a topic of great debate⁵⁰. It is generally believed that the Court is currently composed of six conservative-leaning judges and three liberal-leaning judges⁵¹.
Whilst President, Barack Obama⁵² attempted to use executive power in order to implement aspects of his environmental policy platform, but he was blocked from doing so by the Supreme Court⁵³. In the judgement in question, the judges divided along ideological lines⁵⁴: with conservative-leaning judges in the majority (blocking the implementation of the policies) and liberal-leaning judges in the minority (determining the policies to be valid).
Since this case, the ideological centre⁵⁵ of the Court is generally believed to have shifted to the right⁵⁶ of the political spectrum — meaning that, on the whole, the Court is more conservative-leaning than it previously was. Given that, previously, the Court divided along ideological lines in determining the legality of Obama’s environmental policy, it is not therefore inconceivable that the Court could invalidate Biden’s potential climate proposals too.
This means that Biden may face opposition from the House of Representatives, the Senate, the court of public opinion, and the Supreme Court in the enactment of his policy agenda: possibly meaning that very few (or even none) of his proposals are implemented at all.