If there’s any issue that should unite congressional Democrats and Republicans these days, it ought to be the pressing need for statutory reforms to rein in the growing unilateral powers of the president. As we approach President Joe Biden’s 100th day in office, the importance of pushing through meaningful reforms becomes increasingly important — lest the next president (or even this one) be able to engage in some of the same abuses that we’ve seen in recent years. And the man who should be leading the charge? Joseph R. Biden.
As we approach President Joe Biden’s 100th day in office, the importance of pushing through meaningful reforms becomes increasingly important.
It is hardly controversial to suggest that presidents of both parties have used — and abused — their powers in recent years, from war powers to the impoundment of appropriated funds; from the firing or sidelining of inspectors general to the Insurrection Act; from executive branch vacancies to national emergencies. There is rare bipartisan consensus that Congress has allowed far too much power to drift to the executive branch without adequate safeguards or accountability mechanisms — and that the right thing to do is for Congress to reassert its constitutional prerogative and start clawing that power back.
To that end, there are literally dozens of proposals that Congress should start with. Last fall, the Just Security blog (of which I’m an executive editor) published 23 “good governance” papers by experts from across the political spectrum, outlining “actionable legislative and administrative proposals to promote nonpartisan principles of good government, public integrity, and the rule of law.” One of those was my own contribution on how to close the many loopholes former President Donald Trump was able to exploit to bypass the Senate and temporarily fill executive branch vacancies.
Around the same time, Bob Bauer (White House counsel under Barack Obama) and Jack Goldsmith (head of the Department of Justice’s Office of Legal Counsel under George W. Bush) published a book titled “After Trump” that likewise offers an array of commonsense, middle-ground reforms. And we need go back only to 2016 to find GOP agreement: The Republican-led House Judiciary Committee’s Task Force on Executive Overreach held a series of hearings from February to July on what Congress could and should to do to rein in Obama.
So where are the bills? Nearly four months into the 117th Congress, not a single structural executive branch reform has made it to the president’s desk. Indeed, other than a handful of important but modest ethics reforms in H.R. 1, which the House passed on March 3 and which is currently stalled in the Senate, no reforms have made it out of either chamber of Congress. What seemed as recently as January like an obvious path to meaningful reforms with bipartisan consensus has all but disappeared from public view.
This is not for a lack of trying. There have clearly been sustained efforts behind the scenes, both on Capitol Hill and off of it, to push Congress to take any number of these proposals seriously. The problem appears to be the finite nature of political capital. No one in a position to meaningfully move this agenda forward has thus far appeared willing to publicly prioritize these reforms over the Democrats’ domestic policy agenda. Instead, attention has been focused elsewhere — on voting rights and campaign finance, as in H.R. 1; on vaccinations; on the American Rescue Plan Act; on the next wave of infrastructure reforms; and, this past week, on D.C. statehood.
Given the economic and democratic imperative impelling those reforms, that focus is entirely understandable. As time goes on, however, it’s going to become increasingly short-sighted because it will consume all of the legislative oxygen — taking up the time, resources and wherewithal Congress needs to also reform the executive branch. After all, one reason Congress hasn’t enacted these reforms already — even though the need for some of them has been clear for decades — is because there’s always something more important, more timely, or more politically valuable.
Just like the Affordable Care Act in 2009, domestic policy priorities have the effect of rendering structural reforms impossible — not because of substantive opposition but because of resource constraints. And that’s exactly why presidents have been able to claim ever-broader authority; time and again, the separation of parties has taken precedence over the separation of powers.
What’s more, the closer we get to the 2022 midterms, the more likely that a near-exclusive emphasis on domestic policy victories will predominate, and the less likely it is that there will be any topics on which Republicans will be willing to compromise. And there is always the risk that the same thing that happened to Obama (who lost a Democratic Congress in the 2010 midterms and never got it back) will happen to Biden. Thus, the time for these reforms is now — not later. The best person to make this argument isn’t any individual member of Congress; it’s Biden himself. It might seem strange at first blush for a president to come out in support of limiting his own powers, but there’s an important precedent for just that: President Jimmy Carter. Carter, elected in 1976 as the nation was still reeling from Watergate and some of the worst intelligence scandals in American history, was instrumental in the enactment of some of the most important statutory constraints on the executive branch in the last half-century. The Ethics in Government Act of 1978, for instance, was not just signed into law by Carter; its core provisions were proposals that Carter himself had introduced the previous May. To similar effect was the Foreign Intelligence Surveillance Act of 1978, which for the first time subjected the government’s foreign intelligence surveillance to judicial review; and the Intelligence Authorization Act of 1980, key provisions of which subjected covert intelligence operations to legislative oversight. The Carter administration actively supported these reforms. And one of the senators who voted for them was the then-junior senator from Delaware. More than that, Biden campaigned for president, heavily, on the idea of restoring consensus in Washington. Some of that, of course, is (and was always going to be) a fool’s errand. But these reforms are the one topic on which such consensus should be possible — all the more so if the president of the United States is inviting members of the opposite party to constrain his power. And Biden was vice president during the Obama administration — where he got to see firsthand just how quickly the window can close for meaningful structural reforms even during a two-term presidency. That window hasn’t closed yet. But as we approach the 100th day of the Biden administration, it’s time for these reforms to become a priority, too.
Steve Vladeck
Steve Vladeck is a professor of law at Georgetown Law, whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast). 
