Opinion Republican judges are blocking Biden’s agenda. Harris’s could be next.
“Over the past few months, Republican-appointed judges have either stalled or invalidated a slew of Joe Biden’s policies, potentially erasing a big chunk of the outgoing president’s legacy. These rulings, which largely strike down executive branch initiatives that were not approved by Congress, are an ominous sign for Vice President Kamala Harris. If she wins in November but Democrats don’t carry both houses of Congress, her presidency could turn into nothingness: bills blocked by Republicans on Capitol Hill and administration actions immediately overturned by conservatives on the bench.
This week, a federal judge appointed by former president Donald Trumppaused a Biden administration initiative that would have made it easier for undocumented immigrants who are married to U.S. citizens to get legal status. That comes after recent rulings from lower-level judges, nearly all appointed by either Trump or George W. Bush, that have blocked or curtailed: the administration’s ban on noncompete agreements, a plan that would have reduced student loan repayment costs for about 8 million Americans, expanded protections for transgender children in schools, rules requiring airlines to be more transparent about fees that they charge customers and an initiative to limit industrial pollution in heavily Black areas in Louisiana.
Those are all good and much-needed policies.
“This is why the conservative legal movement pushed so hard to capture the federal courts. Even when Republicans do not control the executive or the legislature, conservative federal judges can exercise a veto over any Democratic law or policy they don’t like,” Jay Willis, the editor in chief of the left-leaning legal website Balls & Strikes, told me.
Following Perry Bacon Jr.
In most of these rulings, the judges say the administration is exceeding its legal authority and needs further congressional authorization. Congress is not going to step in of course, as these judges know, because the U.S. House is controlled by Republicans.
The U.S. Supreme Court could reverse these rulings, but it’s not likely to do so. That’s not surprising, since the high court is dominated by Republican appointees who are also fairly hostile to the president’s agenda. (The justices on Wednesday opted to let the student loan decision stand for now, thereby blocking Biden’s program.)
These are major defeats for the administration, which has tried to push its agenda through federal agencies since Republicans won control of the House two years ago. The noncompete policy and the limits on airline fees in particular were initiatives that Biden’s team and other Democrats were excitedly touting, as proof of the party’s economic populism. The “parole in place” plan was part of a balancing act by Democrats to appeal to both liberal and centrist voters on immigration. It was announced around the same time as Biden’s new restrictions on asylum.
If Harris wins, the deep hostility that Republican-appointed judges are showing to Democratic use of executive power is a huge potential problem for her. Election analysts say that Harris is ahead against Trump and that Democrats could win control of the House, too. But according to polls, the Republicans are favorites to win the U.S. Senate. With a Republican-controlled Senate, Harris won’t be able to get much passed through Congress. And based on how Republican-appointed judges are acting right now, they will be ready to strike down any progressive policies that come from Harris’s appointees at the Federal Trade Commission, the Transportation Department and other agencies.
Federal judges appointed by Democrats invalidated some of Trump’s executive branch decisions when he was president and are likely to do so again if he wins a second term. But the Supreme Court often quickly reversed those liberal rulings, allowing the Republican’s policies to go forward. Biden isn’t getting that same deference.
If Harris wins but Democrats don’t carry the House and Senate, they can’t change the courts much. But if they have another trifecta, they need to act aggressively to rein in conservative judges. Biden’s decision to forgo any consideration of court reform early in his term was a major mistake that Harris should not repeat. And this is not just about executive actions. I assume the complaints from these Republican judges that the executive branch is not deferring enough to Congress is a pretext, and these Bush and Trump appointees will also strike down bills passed by a Democratic-controlled Congress.
But it’s essential that Democrats also push the correct changes to the judicial system — and they are on the wrong track now. Creating term limits for Supreme Court justices, the proposal that Biden, Harris and many other Democrats have embraced, is both constitutionally questionable and doesn’t address what is perhaps the biggest problem: lower-level Republican judges writing their policy preferences into law.
In contrast, adding judges to the Supreme Court, although more controversial, has historical precedent and is more clearly constitutional. A high court with a Democratic majority could quickly and frequently reverse the rulings of lower-level Republican judges — addressing the immediate crisis of a judiciary stacked with very conservative Trump appointees.
Ideally, Democrats would also push forward proposals that would constrain all federal judges, not just the conservative ones. I favor allowing the judiciary to strike down a federal law or agency policy only if three-quarters of the judges on the Supreme Court agree it is illegal. As a left-leaning person, I disagreed with the policies that Trump tried to implement through executive power and agree with Biden’s. But rather than having judges pretend that there is some neutral, objective way to determine which executive actions go too far legally and which don’t, we need to return more power to the elected branches of government.
Whatever happens in the future, the present is bleak. It’s hard to imagine that many Americans support hidden airline fees or noncompete agreements. The fact that a single unelected judge can force such unpopular policies to remain law is alarming and bad for democracy.
Democrats are rightly fixated on winning in the presidency because Trump would be so dangerous if he were in the Oval Office again. But if the Republican judges keep acting like they are now, Harris might be president but she will not be the policymaker in chief.“
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