When the U.S. Supreme Court this year was set to review a decision throwing out Medicaid work requirements like those approved in Michigan — requirements that could have resulted in tens of thousands of people losing their coverage — there was a chance the court might get rid of them for good, ridding the nation of a priority embraced by former President Donald Trump. The Biden administration instead asked the court to let it drop. In March, it did so, at least for now. It wasn’t a matter of whether President Joe Biden supports work or job search requirements for Medicaid recipients: He doesn’t. His administration had already informed states that waivers approved by the Trump administration were being rescinded. But neither did Biden want to be hamstrung by a court decision that could vastly reduce his administration’s authority to grant such waivers as it might prefer. It would create, his solicitor general told the court, too much “uncertainty.” Four months after taking office, Biden has moved to dismantle much of the Trump agenda. He terminated the emergency order Trump used to steer funding toward his southern border wall; lifted the travel ban on people from several majority Muslim nations entering the U.S.; required noncitizens to be included in the Census. He rejoined the Paris climate accord, reversed a ban on transgender individuals in the military and, after some wavering, lifted the cap on refugee resettlements. But in some other areas Biden has protected prerogatives expanded and defended by Trump. On Monday, after a federal judge ordered release of a confidential Justice Department memo that recommended Trump not be charged with obstructing the investigation into Russian meddling in the 2016 election — a memo the judge has suggested may have been intended to justify a decision that had already been made by then-Attorney General William Barr — Biden’s Justice Department demurred. It released a heavily redacted version of the memo and said it would appeal the judge’s order to release it in its entirety to protect its authority to keep “pre-decisional” discussions under wraps. At Citizens for Responsibility and Ethics in Washington, or CREW, the watchdog organization that sued to get the document, President Noah Bookbinder on Tuesday blasted the Biden administration, saying his Justice Department “had an opportunity to come clean, turn over the memo, and close the book on the politicization and dishonesty of the past four years." “Last night, it chose not to do so," he said. CREW has said it will continue to fight to get the document. But it is another example of a circumstance — like the one involving Medicaid work requirements — where the Biden administration is defending the authority under which Trump took an action, even if Biden might disagree with the action itself. And that means that power will remain with the president, whoever he or she might be — and whatever his or her ideological leanings and personal character — in the future. The one branch of government that could potentially take action to rein in the president’s power — Congress — has shown little to no appetite to vigorously attack the issue, continuing a trend that has seen it cede more authority to the executive, rather than attempting to claw it back. “Generally, we have seen the executive branch amass more and more power, in some cases because Congress has given it to them,” said Molly Reynolds, an expert on governance and Congress at the Brookings Institution, a think tank in Washington. “And once Congress has given that power to the executive branch, it won’t give it up willingly.” Biden has gotten generally good marks since taking office and has introduced measures, such as a $2 trillion infrastructure bill and a huge COVID-19 relief package, that his supporters have widely supported. But he has also come under some criticism, for a surge in immigrants pouring over the southern border that his administration moved to address, and for his continued support of Israel during violence in the Middle East despite what its critics say are vast human rights violations suffered by Palestinians. The president and his Cabinet are also walking a fine line by attempting to undo what is seen by many as the excesses of a predecessor who had none of the regard for institutional restraint practiced by other presidents. An example is that of Trump’s decision — unheard of before he did it — to put in place tariffs on imported steel and aluminum by claiming they threatened the national security of the U.S., including from some key allies such as Canada and Mexico. And while those tariffs have been dropped on imports from some of those allies, Biden has studiously avoided getting rid of them altogether, despite there being little evidence of a direct national security threat. Steelworkers, an important bloc of union voters in the Rust Belt, have been clamoring for Biden to keep those tariffs in place, saying they have significantly reduced imports. But national security powers aren’t generally thrown around to effect global market changes — especially not by a country that prides itself on being a beacon of free enterprise. Hundreds of manufacturing companies sent Biden a letter this spring asking he get rid of them, saying the tariffs are driving up their costs. “These tariffs were applied to our NATO allies, it was ridiculous when Trump did it,” said William Yeatman, a research fellow and expert on administrative law and constitutional structure at the Cato Institute, a libertarian think tank in Washington. “Biden didn’t repudiate those steel tariffs.” Some other decisions made by Trump are ones the Biden administration may feel stuck with, even if the new president wouldn't have made them. For instance, Trump moved the U.S. embassy in Israel to Jerusalem, a decision that previous presidents had avoiding making because of its potential to raise tensions now and in the future between Israel, a key U.S. ally, and Palestinians, who have historical and religious claims to the city. Biden has said while he wouldn't have made the decision himself, he won't take it back, knowing that if he did, it could hurt his administration's diplomatic efforts with Israel. Other examples involve what are now long-standing authorities given to the president — such as his ability to wage war against global terrorism — which Congress has discussed pulling back. Biden, despite saying he would withdraw all U.S. troops from Afghanistan this year, appears in no rush to surrender those authorities either. It’s lost on no one that Biden for years as a U.S. senator from Delaware railed against presidents using unilateral power to engage in foreign conflicts. Most experts aren’t surprised. “You have hit on a fundamental condition of the current presidency, its inevitable reach for more unilateral power,” said Elizabeth Sanders, professor emerita and an expert in U.S. political development at Cornell University. She said presidential powers have been repeatedly expanded since at least when Franklin Roosevelt was in office and even earlier, although there was a brief rollback after Richard Nixon's presidency and the Watergate scandal. Some of those involved limiting campaign contributions and requiring members of Congress and top administration officials to release details on their personal finances. But mostly it continued unchecked. Presidents have continually looked for ways to enact national policies, through executive orders or their authority to act as commander-in-chief, for instance. In other cases, Congress has delegated authority to the president or his Cabinet — that has become a regular function of even routine legislation asking agencies or departments to put in place regulations to enact almost any policy. “When we have an intelligent, charming president like Barack Obama, liberal objections to presidential power expansion subside… only to blossom again under Trump," Sanders said. "But yes, Biden is using executive power even more lavishly than I myself expected.” Far from taking decisive steps to rein that power in, however, some members of Congress have almost invited Biden to add to it. In January, Senate Democratic Leader Chuck Schumer of New York suggested Biden could use his emergency powers to take steps to fight climate change. “Trump used this emergency for a stupid wall which wasn't an emergency,” Schumer said. “But if there ever was an emergency, climate is one." But that also makes it far more likely that presidents will continue to issue orders taking on whatever they consider to be emergencies, whether they are — or the public thinks they are — or not, rather than Congress acting. Like Obama taking action to try to halt the deportation of so-called Dreamers, immigrants brought to the U.S. by their parents when they were children, then Trump attempting to rescind it. Like Trump issuing his border wall emergency and then Biden taking it back. “That’s ridiculous. He (Schumer) is the Senate majority leader. He’s asking the president to run roughshod over Congress,” Yeatman said. “That’s the bizarro politics at hand.” There have been some efforts to rein in presidential power, regardless of the administration — namely through the federal courts — and some of them have been successful. An example would be Trump’s rescinding of the Dreamers’ protections: The Supreme Court found his Homeland Security Department had the authority to follow through with it. But the court said it had to follow rules for thinking through and explaining its reasoning that it didn’t do. The Biden administration — like most administrations before it — maintains that it largely keeps itself independent of Justice Department decisions, a stance that, in the past, may have protected it somewhat from public criticism. But with political divisions stark, it’s unlikely to have much of an effect now. In the current atmosphere, the president is going to get the blame or praise for any decision his administration makes; Trump, with his outsize public comments, only made those circumstances more pervasive. It falls ultimately to Congress — as much if not more so than the courts — to curtail presidential power, especially if it gave it to the president in the first place. It is the first branch of government mentioned in the U.S. Constitution, and it is the only one with power to remove a president from office. In theory, it could, at any time, pass laws on immigration, abortion rights, gun control, climate change and more. The president, whoever he is, would be obligated to enforce them. At any time, Congress can limit the president’s authority to wage war. It holds the purse strings that can, again in theory, make or break any presidential initiative. American politics doesn’t work like that, however: The chambers are too evenly divided, and within those divisions, the parties are too separated ideologically. The House has changed majorities three times in the last 14 years and may do so again next year. The 100-member Senate is divided 50-50 with a 60-vote majority needed on most legislation. Even passing regular appropriations bills has become an exercise in futility, with most little more than a continuation of the previous ones done under the looming threat of a shutdown. Large-scale legislation to fix roads and bridges has become nearly impossible to pass, with neither side willing to bend far enough on its size and how to pay for it. And where he can, the president — pushed by public sentiment and the wishes of his party — moves to protect, if not amass, more power. There are some efforts underway in Congress that could conceivably limit presidential power: Some Democrats in Congress are looking to reform the president’s war powers authority. Emily Horne, a spokesperson for the White House National Security Council, told Slate his administration is willing to work “to ensure that the authorizations for the use of military force currently on the books are replaced with a narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the forever wars.” Whether a deal can be reached — and whether more hawkish Republicans will go along — remains to be seen. Then there is what’s being called the “Power of the Purse Act,” legislation that would give Congress more power to ensure that the executive branch agencies are using funding as the legislature requires and limit most emergency declarations to 30 days unless they are continued by Congress. At present, both chambers effectively need two-thirds of their members to vote to overturn a presidential emergency declaration. That legislation, introduced by Democrats when Trump was president, is being proposed again. But how far it can go — with some Democrats urging Biden to expand, not relinquish, his emergency powers — is unclear. What’s clear is that, for now, Biden is likely to keep reversing Trump era policies while protecting the authority that allowed him to make many of them in the first place. “Congress really does need to kind of stand up for itself and figure out how to be an (independent) legislature,” Reynolds said. “Many of these circumstances aren’t going away and Congress needs to figure out how to deal with this. Policy decisions are going to get more difficult to solve.” ©2021 www.freep.com. Visit at freep.com. Distributed by Tribune Content Agency, LLC.
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