Celebrating 200 Years: A Report Card on the Legal Issues in Biden's First 100 Days

As part of GW’s bicentennial celebration, GW Law faculty experts analyzed the first 100 days of the Biden administration.

GW Law Bicentennial
Clockwise, top left: Jamal Watson joined GW Law faculty LeRoy C. Paddock, Christopher A. Bracey, Kate Weisburd, Dayna Bowen Matthew and Renee Lettow Lerner to analyze legal issues in the Biden administration’s first 100 days. (Photo by: William Atkins)
June 01, 2021

By Tatyana Hopkins

President Joe Biden was inaugurated during the most divisive period in modern American political history, said Christopher A. Bracey, George Washington University’s vice provost for faculty affairs and a professor at GW Law.

“No president within the past 100 years has assumed leadership at a time that is so deeply divided,” he said. “Now, within the first 100 days of the Biden presidency, we’ve seen a great deal of our social, political and economic life being up for grabs, so to speak, including the legitimacy of the presidential election itself.”

Mr. Bracey shared his thoughts as part of a virtual discussion in celebration of GW’s bicentennial on a panel that included GW Law Dean Dayna Bowen Matthew and professors Renee Lettow Lerner, Kate Weisburd and LeRoy C. Paddock. The group analyzed the most pressing legal issues faced by the Biden administration in its first 100 days. Jamal Watson, editor-at-large for “Diverse: Issues in Higher Education,” moderated the discussion.

“The struggle over the American democracy, infrastructure, the environment, the pandemic and health disparities, international relations, voting rights, criminal justice, are the defining legal issues of today...and provide the measuring stick by which we can evaluate President Biden on his promise of a more perfect union,” Mr. Bracey said.

Dr. Matthew, who is also the Harold H. Greene professor of law, said the Biden administration already has used legislation, executive orders and litigation to pivot from the prior administration’s approach to manage the COVID-19 crisis and address health care access disparities.

“President Biden's administration immediately went to work, using the avenue or the vehicle of executive orders to address the coronavirus pandemic to mandate distribution, to set targets and to announce that the standards being set by the [Centers for Disease Control and Prevention] and others would be the policy of the department,” she said. “It was a use of the federal government's power to fight the pandemic that was a pivot away from the prior administration.”

Further, she said in its first 100 days the Biden administration reversed course on a number of Trump-era public health policies including making the first investment in the Affordable Care Act (ACA) since it passed in 2010 through the American Rescue Plan, which also established the nationwide COVID-19 vaccination program, extended coverage to Americans earning more than 400% of the poverty level and incentivized states who have not already to expand Medicaid.

Additionally, she said Mr. Biden utilized approximately 40 executive orders to strengthen Medicaid and the ACA, as he directed federal agencies to rollback waivers previously used by states to impose work-requirements for Medicaid, expanded the enrollment period for the federal insurance marketplace and reversed the prior administration's gag rule that prohibited federally-funded family planning programs from referring patients to abortion providers.

However, one area Americans are still looking for the Biden administration to make swift change is reforming racialized policing and criminal justice, said Ms. Weisburd, associate professor of law, especially amid pressures to respond to a rise in violent crime over the past year and calls to limit policing.

“While these two forces appear to be in conflict, I don't think they actually are,” she said. “To date, there hasn't yet been meaningful police reform, so the crime rate that we're seeing today reflects policing as it's always been. So, perhaps the Biden administration will see the rise in crime as a call to take swift and bold action to address violence in new ways.”

While she noted that the administration set aside $5 billion for community-based violence interruption programs in the American Jobs Act, she said it will likely have to choose between conflicting approaches to addressing policing.

While the proposed George Floyd Justice in Policing Act would limit qualified immunity, ban chokeholds and no-knock warrants and give the Department of Justice greater authority to investigate police departments among other things, the alternative BREATHE Act seeks to limit and redirect police funding to community-based programs addressing people’s basic needs.

“I think there's always a risk that we're swapping one broken approach with another broken approach,” she said. “In many ways the two bills represent the divergent approaches to addressing policing and police reform, but they also both reflect a shared understanding that the status quo is inadequate.”

More optimistically, Mr. Paddock, former associate dean for environmental law studies and currently a distinguished professorial lecturer in environmental law, said Mr. Biden is on the path to fulfil his pledge to cut greenhouse emissions in half by 2030 due in large part to a decade-long transition from fossil fuels and a high demand in the private sector for renewable energy.

“I think the Biden administration really just needs to continue playing a facilitative role,” Mr. Paddock said.

An area the administration is likely to face challenges said Ms. Lerner, the Donald Phillip Rothschild research professor, is in the pressure to undo President Donald Trump making three nominations to the Supreme Court and adding seats to the to court.

“It would be difficult to get through the Democratic House right now, even though they have a majority, and even more difficult to get through the Senate, which is a 50/50 split,” she said. “I think the Democrats will be concerned about the optics of that, and that it's a big turnoff for moderates and swing voters to be adding members to the Supreme Court, so I don't think that that will happen.”

Although in favor of term limits, she said they would also be difficult to implement because they likely require a Constitutional amendment, which would not be in line with pressure to act quickly.

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