After midterms, the return of the ‘pen and phone’

The pattern has become so common now that we may take it for granted: A president, particularly a Democratic president, has control of Congress for the first two years of his first term; during those two years he focuses on major legislation. For President Clinton it was the Family and Medical Leave Act and a failed attempt at health care reform. For President Obama, it was the Affordable Care Act and the Dodd Frank Act. And for President Biden it was the Inflation Reduction Act and numerous other pieces of legislation.

Then the president loses at least one house of Congress in his first midterm.

President Biden’s losses were smaller than any of his recent Democratic predecessors, but the House of Representatives will now be under Republican control. And as with his predecessors, this means that Biden will find it much more difficult to pass significant legislation through Congress.

So — presidents then turn to the other tools in their arsenal, specifically — as President Obama famously declared — the “pen and the phone.” In particular, after the first two years of their terms, Presidents Clinton and Obama increasingly used regulation (“the pen”) as a policy-making device. It is generally impossible for Congress to restrict the issuance of regulations that implement an already existing piece of law (unless that regulation comes in the last six months of the president’s final term).

To be fair, regardless of the outcome of the midterm elections, President Biden’s administration was likely to speed up the issuance of regulation somewhat. He has already announced a number of regulatory initiatives to address emissions responsible for climate change. The Inflation Reduction Act also requires agencies such as the Departments of Health and Human Services, Treasury, and Energy to issue new regulations.

But with the GOP in control of the House of Representatives, the presidential focus on regulation will increase. As President Biden prepares for a possible re-election run, the regulatory process will give him additional accomplishments beyond those that he achieved legislatively over the past two years.

Of course, Biden faces a potential obstacle that his predecessors did not. While some regulations issued by Presidents Clinton and Obama were overturned by the courts, largely they were successful in implementing their regulatory priorities. President Trump was much less successful navigating the judicial system in trying to implement his deregulatory agenda, but that was largely due to his administration’s seeming inability to follow legal requirements when attempting to deregulate.

President Biden’s administration is largely staffed with people who will understand how to successfully navigate the regulatory process — but unlike Presidents Obama and Clinton, he faces a Supreme Court that is dominated by conservative jurists who are deeply skeptical of agency regulatory authority. In last spring’s decision West Virginia v. EPA, the Court decided that EPA’s attempt to remake the electric power sector to combat climate change was too great a deviation from the authority given to it by Congress. This example of the “Major Questions Doctrine” will hang over every regulatory decision made by the Biden administration and may slow their production of new regulations.

This slowing is particularly important because, as President Biden’s nominee Administrator of the Office of Information and Regulatory Affairs, Richard Revesz, has noted, it now often takes two terms for presidents to implement their regulatory agendas.

The first two years of the Biden administration were very productive in Congress, despite slim Democratic majorities. But now policymaking in Washington will return to a contest between the other two branches of government. President Biden will wield his pen. And the Supreme Court will decide whether or not to allow his regulations to go into effect — probably before the ink dries.

Stuart Shapiro is professor and director of the Public Policy Program at the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him on Twitter @shapiro_stuart.