Against the backdrop of the ongoing COVID-19 pandemic, the incoming Biden–Harris administration will immediately face unprecedented challenges. The new administration’s response to the pandemic and their plans for relief and recovery will likely lead to many changes in the law. For many areas of legal practice, however, the Biden administration promises to deliver a balance between making history and seeking compromise.
The biggest challenge facing the Biden administration will be the public health crisis and the economic uncertainty it has spawned. Since the first wave of the pandemic hit New York particularly hard in March 2020, lawyers have spent much of the year adapting to a new working environment as well as the changing laws and regulations.
“The pandemic has really created a whole new body of federal and state laws in terms of executive orders and legislation, and certainly in New York,” said Christopher D’Angelo, Chair of the NYSBA’s Labor and Employment Law Section. “Much of that has impacted the employer-employee relationship, so practitioners on each side of this practice area have been compelled to learn all these new laws in a very brief period of time. There were times when we all felt like we were drinking out of a fire hose.”
The flurry of new laws and regulations has come at a rapid-fire pace. In New York State, Gov. Andrew M. Cuomo has issued over 80 executive orders in response to the pandemic so far this year. On the federal level, the Trump administration has largely given the states control over their response to the pandemic, foregoing a unified national approach. “I think one of the concerns with regards to COVID is that there have been so many mixed messages given by the Trump administration,” said Margaret Davino of New York City’s Fox Rothschild and member of NYSBA’s Health Law Section. “That’s something that the Biden administration has already really tried to change.”
Among these new changes, the Biden transition team has announced a seven-point plan for addressing the pandemic, which includes a nationwide mask mandate. While the Biden administration has signaled its intention to change the federal government’s approach to fighting COVID-19, it will also seek to restore a few key laws that preceded the Trump presidency.
“I expect a priority will be restoring, strengthening and expanding the systems that were originally put in place under the Affordable Care Act,” said Jane Bello Burke, a partner at Albany’s Hodgson Russ and member of NYSBA’s Health Law Section.
The Biden administration’s intention to restore laws that were repealed or weakened by President Trump will affect many areas of legal practice, and for New York lawyers this will likely mean stronger agreement between federal and state laws. For example, Biden has made clear his priority to address climate change, and his plan for climate action is the most ambitious of any presidential candidate in history. Biden is likely to use executive orders to rejoin the Paris Climate Agreement, create regulations that cut greenhouse gas emissions, and make climate a part of any coronavirus relief package.
“I think there will be much more of an alignment between the state environmental protection efforts and the federal environmental protection efforts once the Biden administration comes into office,” said Joel Sachs of Keane and Beane. “Environmental law the past four years has been in a long, dark night, and I think with the Biden administration coming in, we’re going to be leaving that long, dark night and coming into a bright new day for environmental law.”
While the incoming president will seek to restore and build on certain policies from the Obama–Biden administration, it has already started breaking barriers and making history in its own right. Biden’s victory elevates the first female candidate to the vice presidency, and he has also committed to installing a historically diverse cabinet.
“Having a woman – and a woman of color – as the second most powerful person in America is obviously breaking a huge glass ceiling for women everywhere,” said Terri Mazur, chair of the Women in Law Section. “I think it will impact the legal profession.”
NYSBA’s Commercial and Federal Litigation Section’s Women’s Initiative recently investigated the number of women attorneys who are lead counsel for courtroom trials in New York. The two reports, issued three years apart in 2017 and 2020, show only a 2% increase of women lawyers in lead counsel positions.
“I’m hopeful that now that we have a woman in one of the highest positions and a president-elect who is committed to being inclusive that law firm management and law firm leaders will pay more attention to it and be more proactive in advancing women in the law firm,” said Mazur.
The new administration’s commitment to equity and inclusion could change workplaces in ways beyond representation as well as the advancement of women and people of color. “One action I expect to see fairly early a rescission of a Trump executive order that was signed in September of this year, relating to race and gender discrimination, but which effectively was a ban on implicit bias training,” said D’Angelo. “It impacts labor and employment law, because it impacts the type of training that employers who are federal contractors are conducting, and many employers, including federal contractors, have been providing implicit bias training for several years now.”
Even while the direction the new administration intends to take on multiple issues is coming into clear focus, it is still unknown whether the Republicans will maintain control of the Senate. Both Senate seats in Georgia are heading into a runoff election on January 5. The Republicans would need to win only one of those seats to retain their control of the chamber, a possibility that would likely create a significant obstacle to Biden’s legislative agenda.
“If the Republican candidate wins only one race, Senator McConnell will be his necessary partner in any legislation,” said Robert Masters, chair of the Criminal Justice Section. “Such a loveless, arranged marriage will not likely produce sea changes in the law.”
President-elect Biden is widely seen as a moderate, and his political orientation along with his long service in the Senate could mean that he is inclined to compromise with Republicans regardless of which party controls the Senate.
“Joe Biden is a career creature of the Senate, a seeker of compromise, who realizes that for success, everyone needs something,” said Masters. “Mr. Biden is as practical as he is moderate, but I would anticipate incrementalism as the path.”
A key area where the Biden administration could look for bipartisan compromise is in his response to the pandemic.
“I expect there will be a push to make permanent some of the telehealth flexibilities that were put in place as part of the COVID-19 emergency,” said Burke. “This appears to be something that has bipartisan support.”
As Biden tries to balance his administration’s priorities with the need to compromise, he is also likely to rely on executive orders, as in the case of rescinding Trump’s order on implicit bias training and restoring the United States’ participation in the Paris Climate Agreement.
“Since the Obama administration, presidents have increasingly relied on these orders, and those unhappy with a particular order have challenged individual orders in the courts with varying degrees of success,” said Masters. “Also complicating this equation is how the newly constituted Supreme Court will react. SCOTUS previously seemed agreeable to expanding the authority of a right-leaning president. Will the Court be as comfortable expanding the authority of a 78-year-old moderate president?”