Charles Lipson Joe Biden has vanished, leaving behind an almighty mess The president has disappeared from view during the long interregnum before Donald Trump takes power
https://www.telegraph.co.uk/us/comment/2024/12/17/has-anyone-seen-joe-biden/
America and Britain share a rightful pride in the peaceful transfer of power. But they conduct the transfer very differently. The British vote in a day, count the votes that night, and install a new government almost immediately. Shadow ministers are ready to take over.
Not in America, which takes weeks to cast ballots and, often, just as long to count them. This year, analysts were shocked to find the winner could be called on election night, a rarity due to Donald Trump’s victory in all seven “swing states”. It took longer to count the votes for other federal offices, sometimes much longer. In California, one congressional seat wasn’t decided until early December. Soviet workers got new cars faster.
Even if the votes had been counted swiftly, America’s new government would still have waited over two months before taking office. It used to take even longer. Until 1933, when the 20th Amendment was passed, the new president didn’t take office until early March. The vote was still held in early November.
Despite the Amendment, there’s still a two-month pause before the new president takes office. That gap poses dangers internationally and domestically. Foreign foes may choose to act while the old team is still in power, fearing the new administration may be tougher (as they do now) or less predictable. Domestically, the incumbent administration and lame-duck Congress have a last-minute chance to push through their priorities. The outgoing Congress can pass laws, the outgoing president can issue executive orders, and departing White House aides and Cabinet members can rush money out the door before the new administration cuts off funding for their pet projects.
Although such problems recur at the end of every presidency, they are always more serious when the other party is about to take power. They are even worse when the incoming president will have a new majority in Congress, as Trump will this time. That’s why president Biden’s team is trying to push through as many lifetime judicial appointments as possible before the Senate switches to Republican control.
The Senate alone is responsible for approving (or rejecting) judicial nominees and senior appointments to federal agencies. For decades, that approval rarely incited controversy. The rare exceptions came when Senate investigators (or hearings) found serious problems with a particular nominee. Otherwise, the minority party typically went along with the nominations, believing that the president had the right to choose his Cabinet and their top deputies. Likewise, judicial nominees were approved by large majorities if they had the standard qualifications.
Those days ended several decades ago, crushed under the weight of America’s more ideological and divisive politics. These combative differences have led to long delays, especially for sub-cabinet nominees who have to wait until more senior officials have been approved.
The president’s right to nominate so many candidates is a unique feature of American government. Most constitutional democracies limit the prime minister to cabinet-level appointments. They retain permanent civil servants for nearly all positions below that. Not in the US, where the president can fill thousands of spots at higher levels of all bureaucracies. That responsibility gives him (and the voters in our democracy) considerable control but it takes months to accomplish. There is no “shadow cabinet” in waiting. The incoming president has to pick and choose, wait for FBI background checks, wait still longer for Senate hearings and then, ultimately, for a final Senate vote.
It’s a slow process, but one that gives the president far greater control over the executive branch than his peers in other established democracies. Trump hopes to extend presidential control even further by reclassifying some federal employees so that he (and his successors) can replace them “at will”. Trump’s proposed “Schedule F” would remove the normal civil-service job protections for employees in what are termed “policymaking positions”. That effort will be fiercely resisted by Democrats in Congress and subject to numerous court challenges. So will his effort to trim the bureaucracy and roll back burdensome regulations.
Resistance by the opposition party is only half the story here. The other half is support by the president’s own party in Congress, not just for nominees but for most legislation. That support, which is now an enduring feature of American government, means much of the president’s agenda will become law if his party controls Congress. It may be a slow process, but it’s an inexorable one.
What is often overlooked is how this process has changed the way America is governed. America’s Founders, who wrote the Constitution in 1787, sought to prevent tyrannical rule by sharing sovereign prerogatives among the three branches of government. The underlying assumption was that the executive, legislative, and judicial branches would each zealously protect its power from encroachment by the others. That arrangement is commonly called the “separation of powers,” but it is really shared control over the same sovereign power.
The Founders were most concerned by the overweening power of Congress. Today, of course, the most powerful branch is the executive. Typically, we see Congress wait for the president to set the legislative agenda and then work with his party to push through as much as possible. The president also heads the branch that issues administrative rules and regulations and has the personal authority to issue (fiat) executive orders.
President Biden (or someone acting for him) is spending the waning days in office issuing those orders, dispensing pardons for convicted criminals, including his son, rushing through judicial appointments, and spending as many allocated dollars as he can on favoured projects. Unseemly or not, it’s all within the president’s authority and standard practice for outgoing presidents. The only difference, aside from helping out his son, is the troubling question of who is really running the White House, given Biden’s cognitive decline.
Biden himself is hardly seen these days. He’s been largely invisible since election day, well over a month ago. He hardly speaks to the press or the public, even when major events occur. He may deliver a few short, written comments, but that’s it. Major world events happen without a word from him. If he stays hidden much longer, his picture will appear on the side of a milk carton: “Have you seen this missing adult?”
Meanwhile, his successor is moving quickly. Trump stayed uncharacteristically quiet for several weeks while he picked his Cabinet and senior White House aides, but that’s over. The appointments were done rapidly, including several controversial choices (one of whom, Matt Gaetz, was unqualified and quickly dropped).
Still, the whole process showed the president had learned from his first term, where he was surrounded by multiple officials who undermined his agenda. He won’t repeat that mistake. This time, loyalty is an overriding consideration. Most, but not all, of his picks have another essential qualification: they know how to manage a large, sluggish, and recalcitrant government bureaucracy. Those who lack those management skills could inadvertently stymie Trump’s initiatives, or, rather, they will unless they choose highly-qualified deputies. Otherwise, mid-level bureaucrats will tie up the president’s programmes.
On the international stage, Trump is already acting like the most powerful man in the free world while the actual president is acting like he’s finished with public life and ready to settle into an easy chair in Wilmington. Just look at the reception Trump received in Paris for the reopening of Notre Dame cathedral. A stream of prime ministers and presidents lined up to bend the knee and kiss the ring. The rest are making their way to Mar-a-Lago, where they stand in line beside the heads of technology companies.
It’s an impressive show of power. Or, rather, “prospective power”, since Donald Trump won’t take office until midday on January 20. He’s not waiting, though, to tee up an aggressive agenda. Sadly, the man who currently holds the office seems more befuddled by the day, as he totters, stiffly, off the stage. He’s leaving behind a mess to clean up.
Charles Lipson is the Peter B Ritzma Professor of Political Science Emeritus at the University of Chicago. His latest book is ‘Free Speech 101: A Practical Guide for Students’. He can be reached at charles.lipson@gmail.com
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