Biden’s first 100 days: What the next US president can and can’t do

Despite complaints from progressive activists who backed Joe Biden’s Democratic primary challengers, the president-elect will enter office in January with the most ambitiously progressive platform of any incoming executive in US history.

Whether he can follow through on the most transformative elements of that policy agenda depends almost entirely on who controls the Senate, which appears likely to hinge on a pair of runoff races in Georgia that, if Democrats win, would give them a 50-50 chamber split, with Vice President-elect Kamala Harris casting tiebreaker votes.

“Now we take Georgia, then we change America,” Senate Minority Leader Chuck Schumer said, now infamously, in the middle of a crowd in Brooklyn celebrating Mr Biden’s presidential election victory on Saturday.

For Mr Biden to “change America,” a Senate Democratic majority would need to scrap the chamber’s decades-old rulebook that requires 60 votes — not the simple majority outlined in the Constitution — to pass legislation.

Aides on Capitol Hill have uniformly told The Independent such a move is very much on the table if — and that’s a massive “if” — Democrats take back the Senate.

For the purposes of this piece, we’ll be operating under the assumption Mitch McConnell and the Republicans retain Senate control, limiting Mr Biden’s options.

Here is what Mr Biden can and can’t do in the opening days of his presidency.

What Mr Biden can do

The president-elect has already assembled a 13-member coronavirus task force to guide his administration’s response to the pandemic, including putting together a vaccine vetting and distribution plan and guidance for how to allocate resources as cases and deaths ebb and flow in certain parts of the country.

Mr Biden has also said he will rejoin the World Health Organisation on Day One of his presidency. Donald Trump yanked the US from WHO participation over the summer as he levied accusations the group was too cozy with China.

Mr Biden will keep Dr Anthony Fauci, the nation’s top infectious disease expert, at the National Institutes of Health, in his position. And as head of the executive branch that includes the Food and Drug Administration, Mr Biden has it within his power to reverse the current administration’s aggressive stance applying pressure to FDA regulators to expedite or scrap review processes for vaccines and therapeutics.

The president-elect has long called for more robust testing across the country and for the Trump administration to utilise the Defense Production Act to compel manufacturers to produce personal protective equipment (PPE).

And one of the most important things he can do is roll out a robust, consistent public relations and advocacy campaign urging Americans to wear masks, maintain social distancing, and take other preventative steps that comport with Centres for Disease Control and Prevention guidelines.

“It doesn’t matter who you voted for, where you stood before election day,” he said on Monday. “We can save tens of thousands of lives if we just wear a mask.”

What Mr Biden can’t do

Without Democratic control of both chambers of Congress, Mr Biden will have to negotiate with Mr McConnell or at least a cadre of moderate Senate Republicans on any coronavirus aid legislation, severely limiting what kinds of things he can pass.

Mr McConnell has signaled he hopes to strike a deal with Democrats for more relief by the end of December, and he seems to have softened somewhat on sending at least some aid to state and local governments on the frontlines of the coronavirus response. But he is holding his “red line” of securing liability protections for schools, health systems, and businesses who could be sued for exposing people to Covid-19.

The topline dollar amounts for a coronavirus relief bill from each of the legislating stakeholders show just how far apart Democrats and Republicans are:

The bottom line is that Mr Biden and the Democrats won’t be able to throw as much money at the Covid-19 crisis as they would if Mr McConnell does not secure the Senate gavel.

What Mr Biden can do

Quite a lot, actually.

In Mr Trump’s four years in office, Congress never passed any meaningful immigration reform. That meant he had to resort to ruling by executive order and securing money to build portions of a wall along the US-Mexico border through strange backchannels such as diverting funds from the Defense Department.

Mr Biden can undo most of that. Right away, he plans to:

What Mr Biden can’t do

Legislatively, Mr Biden will be hamstrung, meaning he won’t be able to make permanent changes to the US immigration system.

Mr Biden cannot unilaterally provide a pathway to citizenship for Dreamers.

And everything listed in the “What Mr Biden can do” section above could be undone by a future Republican president.

What Mr Biden can do

The Supreme Court heard a case on Tuesday, backed by the Trump administration and Republican state attorneys general, challenging the constitutionality of the 2010 health care law known as Obamacare. When the issue a decision, the justices could deal a death blow to the entire law (possible), strike down certain parts of it (likely), or keep it as is (unlikely).

The court’s decision will largely dictate Mr Biden’s strategy moving forward on health care.

If the law is left mostly intact, he can do a number of things on the regulatory side that reverse the work of the Trump administration that has undermined access and affordability of health coverage under Obamacare.

For instance, Mr Biden could extend the open enrollment period, re-tweak regulations to stabilise markets, and simply devote more resources to market and advertise Obamacare to would-be buyers.

What Mr Biden can’t do

The sweeping changes Mr Biden wants to make to the US health care system run through Congress.

So if Democrats Jon Ossoff and Raphael Warnock don’t defeat GOP Senators David Perdue and Kelly Loeffler in January, Democrats can kiss goodbye Mr Biden’s dreams of:

lowering the Medicare eligibility age from 65 to 60; and

creating a Medicare- and Medicaid-adjacent “public option” for health coverage to compete with private insurers and drive down premium costs.

What Mr Biden can do  

Mr Biden can take considerable steps to address climate change even without congressional approval.

He has promised throughout his campaign to immediately re-enter the 2015 Paris Climate Accords in which countries have pledged to reduce their carbon outputs and invest in renewable energy production to increase its share in the energy marketplace.

The president-elect has also vowed to immediately place a freeze on Interior Department permits for energy companies to frack on federal lands.

A Biden administration could institute (or renew) regulations to make buildings and appliances more energy efficient, place methane caps on oil and gas production, and replace fuel economy standards scrapped by Mr Trump.

Mr Biden also plans to sign an executive order on the first day of his presidency to conserve considerable acreage of US lands and waters that Mr Trump had hoped to open up to private resource harvesters.

What Mr Biden can’t do

Throughout his campaign, Mr Biden laid out a $2trn plan to invest in America’s green infrastructure: Subsidies for wind and solar energy production, new taxes on carbon release, kickbacks for carbon capture, and much more.

Those changes were to come in the form of a sweeping new infrastructure package and congressional spending bills, but Mr McConnell could put the kibosh on any such deal if he wields the majority gavel.

What Mr Biden can do

With no Senate majority, very little.

Mr Trump’s populist streak did chip away at the Republican free-market economic consensus, so there could be room for Mr Biden to strike a deal on investing in US manufacturing and expanding US research and development.

He can also help quell the uncertainty pervading the US farming system by gradually ending the trade war with China. That would mean gradually drawing down Mr Trump’s tariffs on agricultural products in lockstep with Beijing, a process that would take time and careful, vigilant negotiation.

What Mr Biden can’t do

Mr Biden’s ambitions to undo the GOP’s 2017 code overhaul is kaput if Republicans keep the Senate.

He can’t raise the corporate tax rate to 28 per cent from its current level of 21 per cent to 28 per cent on his own. He can’t raise the income tax rate on Americans in the highest income bracket ($400,000 or higher). He can’t raise the capital gains tax for multi-millionaires. And he can’t make the tweaks to the itemised deduction codes that he says currently let the richest Americans write off more in taxes than they ought to be able to.

Mr Biden spent hours and hours on the campaign trail talking about making American corporations and billionaires pay their “fair share” in taxes, but no changes to the tax code are possible with divided government.

What Mr Biden can do

The former vice president has promised to form a national police oversight commission in his first 100 days to promote community policing and help local law enforcement agencies such as police and sheriff departments identify departmental deficiencies and racial disparities.

“We need each and every police department in the country to undertake a comprehensive review of their hiring, their training, and their de-escalation practices,” Mr Biden said in June.

Other than encouraging and supporting state and local law enforcement who are undertaking self-evaluation efforts on their own, Mr Biden cannot do much without legislative approval.

What Mr Biden can’t do

Democrats and Republicans each tried to seize the moment of renewed attention this summer on police brutality and systemic racism in the criminal justice system to reform policing in the US.

They couldn’t even reach a starting point for negotiations on compromise legislation.

Vice President-elect Kamala Harris, one of just two black Democratic senators, helped author a sweeping reform bill, the SAFE Justice Act, that passed the House, but was dead on arrival in the GOP-controlled Senate.

That bill would fundamentally transform “qualified immunity” protections for federal officials who take lethal action against individuals, place a national ban on chokeholds, and make no-knock warrants a thing of the past.

Meanwhile Republican Senator Tim Scott’s much narrower bill didn’t muster enough support to clear the 60-vote barrier to begin negotiations and amendments, with Democrats saying it was too hollow to effectively use as a basic framework for a deal.

Mr Biden has lent his support to the SAFE Justice Act, but if Mr McConnell and Senate Republicans didn’t move on it this summer, they certainly won’t do it during the Biden administration.