When Joe Biden takes office as U.S. president in January 2021, he may well be presiding over a divided government. Although the situation is not yet certain, Republicans seem on track to maintain control of the U.S. Senate by a razor-thin margin. If they do—and if Senate Majority Leader Mitch McConnell continues the tack he pursued through much of the administration of former President Barack Obama—it will most likely mean a hold on the Democrats’ legislative agenda, as well as persistent challenges to the Biden administration’s ability to govern effectively. So hamstrung, Biden might turn to executive orders and other executive measures, raising new questions about a perennial issue: the proper scope of executive power.
A bit of hypocrisy around questions of executive power is a well-worn American tradition. Both parties tend to criticize it when out of power, only to find new and creative ways to wield it once they take the White House. This reflects the simple truth that the president does have broad executive authority in practical terms, especially when it comes to foreign affairs and national security. Such power isn’t necessarily hard-wired into the office by the Constitution. Rather, it most often reflects the fact that, over the years, Congress has delegated much of its relevant authority to the president, either expressly through statutes or implicitly through acquiescence to executive initiative. The courts have generally resisted second-guessing how presidents use these authorities, at least so long as those leaders don’t transcend any clear limits put in place by Congress. In turn, successive administrations have had broad leeway to implement their domestic- and foreign-policy agendas, at least so long as they don’t push hard enough to trigger a congressional backlash.
