On January 20, 2021, Joseph R. Biden Jr. will be sworn in as the 46th president of the United States. As of the writing of this column, control of the Senate is undetermined. The results of the January 5 run-off election in Georgia will determine Senate control. Perhaps the results of that election will be known by January 20; perhaps they will not. Regardless of political control of the Senate, President-elect Biden has announced an aggressive agenda for actions he wants to take in his first 100 days in office.
The metric of the “First 100 Days” originated in Franklin Delano Roosevelt’s first term in office. During those 100 days in 1932, FDR addressed a wide variety of critical issues plaguing the nation during the Great Depression. This track record set a standard for activity. While not a legislative or legal measure of time, it has become a symbolic period of action where the president works on the issues he believes are the most important.
Many of Biden’s goals for the first 100 days can be achieved through Executive Orders, which allow the president to act unilaterally in certain areas. Other goals will need legislative action. This article explores three areas where Biden has vowed early action and where the New York State Bar Association has spoken.
While the COVID-19 pandemic has dominated life for most Americans this past year, it has also dominated the legislative agenda for Congress. Several relief bills were enacted early in the COVID crisis, but additional measures are needed to support individuals, businesses, states and localities. Shortly before the election Biden said he would “ask the new Congress to put a bill on my desk by the end of January with all the resources to see how both our public health and economic response can be seen through [to] the end.” NYSBA has been active on several of the positions Biden supports for COVID relief, including utilizing the Defense Production Act (DPA) relief for small businesses and student loan relief.
In the dark early days of the pandemic, when the nation’s health care system was suffering and was faced with a dearth of personal protective equipment (PPE), then-NYSBA president Hank Greenberg called for the federal government to invoke the 1950s-era DPA to mandate companies do something to help fight the coronavirus. The Trump administration did utilize the law for procuring additional N95 masks and producing ventilators, but more needs to be done, and quickly, as we continue to see a meteoric rise in infections and hospitalizations.
Small businesses have suffered greatly during the pandemic and the resulting stay-at-home orders. In order to provide assistance, Congress passed legislation creating the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loans (EIDL). The State Bar weighed in with Congressional leadership and the New York Congressional delegation on several provisions important to the Association and its members throughout the process of the legislative response to the pandemic. NYSBA advocated for additional emergency funding for the PPP and EIDL. Many of NYSBA’s members who are solo practitioners or in small firms benefited from these targeted relief proposals. However, additional relief is desperately needed. Biden has urged Congress to pass such a measure before he even comes to office because it is so urgent, and as of this writing there were signs that some help might be approved this month, probably in the form of a $908 billion bipartisan relief bill in Congress that also has the support of President-elect Biden.
Congress suspended certain student loan payments for borrowers through September 30 as part of the relief measures passed early in 2020, and President Trump extended the moratorium through the end of the year. Barring any action in Washington before then, student loan payments will resume on January 31, 2021. More than 40 million Americans, mostly people under 35 years of age, have student loan debt. Rising unemployment exacerbated an already difficult situation for many more people this past year. NYSBA has advocated for expanded student loan relief and to provide targeted monetary relief in cases of economic hardship and will continue to do so in the new year. President-elect Biden has made student loan relief a priority for his administration. While he will look to Congress for legislative action, that may be challenging depending on the political makeup of the Senate.
Biden has expressed support for cancelling up to $10,000 in student loan debt as part of the next coronavirus relief bill. Some want to see him go further and cancel up to $50,000 of debt, and perhaps to achieve this goal through Executive Order. A late November Hill-Harris poll found 60% of registered voters support the idea. But, can the president forgive debt without Congress? Legal experts disagree as to whether the president can act unilaterally, in consult with the Department of Education, or with the approval of Congress. Unilateral action would probably result in a court challenge.
Given the political situation, Biden does not have the luxury of prioritizing his wish list for action, and will instead need to address multiple policy provisions simultaneously during the first 100 days, including the environment and immigration.
Biden has long been an outspoken advocate of returning the U.S. to the Paris Accord. Signed by nearly every nation on Earth in 2015, the Accord creates an international framework for addressing greenhouse gas emissions to limit the rise in global temperatures along with support for developing nations and transparent and robust climate goals. In one of his first actions as president, Trump announced his intention to remove the U.S. from this agreement. In response, then-NYSBA President Sharon Stern Gerstman wrote to President Trump to register the Association’s objection to his decision to have the U.S. withdraw from the monumental agreement. Citing the expertise of NYSBA membership in the Environmental and Energy Law Section, she wrote that we “are acutely aware that climate change has evolved from an issue that initially merited further study to an outright crisis demanding prompt and effective action.”
While Biden will likely face pressure from the more progressive wing of the party for additional environmental priorities, such as fracking and the Green New Deal, he is not expected to support these programs in the first 100 days, and likely not ever. Reinstating the U.S. in the Paris Accord will be a relatively easy win and a well-received pro-environmental action by the new president.
Biden has also promised to address immigration issues in a comprehensive manner on his first day in office, including the Deferred Action for Childhood Arrivals program (DACA), the U.S. Immigration and Customs Enforcement agency (ICE), and detention of children. He wants a plan to create a pathway for citizenship for the 11 million undocumented people currently in the U.S., including DREAMers, those who are part of DACA. NYSBA applauded the U.S. Supreme Court’s decision in Department of Homeland Security v. Regents of the University of California upholding the legality of DACA. This case provides for the extension of legal protections against deportation for hundreds of thousands of young immigrants across the nation.
The presence and power of ICE has become problematic, to say the least, during the Trump administration. Biden has called for increased government supervision of ICE with a need to hold its agents “accountable for inhumane treatment.” During the Trump administration, there was a noticeable increase in arrests by ICE agents at criminal, family and traffic courts in New York State. NYSBA has long supported and encouraged access to justice for all, including unfettered access to courts of law. In 2018, the Association adopted a policy urging ICE to include courthouses as a “sensitive location” in its Sensitive Locations Policy, which enumerates the places in which ICE will not conduct enforcement actions barring exigent circumstances.
During the Trump administration, reports began to emerge of children, including unaccompanied minors who traveled to the United States alone and children who were separated from their families at the border, being held in federal immigration detention facilities, in some instances in deplorable conditions. Moreover, many months later, some of these children who were taken remain separated from their parents. Biden has announced he will immediately create a federal task force to reunite the more than 500 children who were taken at the U.S.-Mexico border and are still apart from their parents. In 2019, the State Bar Association called on the U.S. government to end inhumane treatment of immigrant children immediately, reunite children with their parents and families, and provide basic necessities, such as medical care and proper nutrition, to all children in its custody. Then-NYSBA president Hank Greenberg stated that the Association unequivocally condemns, “in the strongest terms possible, the shameful and merciless treatment of children in the custody of the federal government.”
This policy reflects the Association’s long-standing commitment to supporting the rule of law, access to justice, and due process.
The first 100 days of Biden’s presidency will be a busy time in Washington, as will the rest of the days of this Administration. Be sure to check the NYSBA website for updates on legislation of importance to its members.