WASHINGTON-
On restoring abortion access, President Joe Biden says his hands are tied with no more Democratic senators. Declaring a public health emergency over the matter has drawbacks, his aides say. And when it comes to gun violence, Biden has been clear about the limits of what he can do on his own.
“There is a Constitution,” Biden said from the South Lawn in late May. “I can’t dictate these things.”
Throughout this century, presidents have often pushed aggressively to extend the limits of executive power. Biden talks more about his limits.
When it comes to the thorniest issues facing his administration, the instinct of Biden and his White House is often to talk about what he can’t do, citing court-imposed restrictions or insufficient support in a Congress controlled by his own party. although barely.
He injects a heavy dose of reality by speaking to an increasingly restive Democratic base, which has demanded action on issues like abortion and voting rights ahead of the November election.
White House officials and allies of the president say that approach typifies a leader who has always promised to be honest with Americans, including about how broad his powers really are.
But Biden’s realpolitik tendencies are clashing with an activist base fighting for a more aggressive party leader, both in tone and substance. Although candidate Biden presented himself as the person who best knew the ways of Washington, he is nonetheless hampered by the same obstacles that have beset his predecessors.
“I think if you hesitate to take major action like this just because of a legal challenge, then you wouldn’t do anything,” said Rep. Judy Chu, D-Calif., who has been pushing for more administrative action on abortion. “People across the country expect us, the leaders, to do something.”
Biden’s warning focus could be to protect himself if the White House falls short, as Democrats did in negotiating a party-line spending package focused on social safety net and climate provisions. That grand effort was consistently stymied by resistance from two moderate Democrats, one of them West Virginia Sen. Joe Manchin, who on Thursday scuttled for the time being a slimmed-down effort that focused on climate and taxes.
That development prompted calls from Democratic senators for Biden to unilaterally declare a climate emergency. In a statement Friday while in Jeddah, Saudi Arabia, Biden pledged to take “strong executive action to meet this moment” on climate. But in recent weeks, that gap between “yes we can” and “no we can’t” has been more apparent in abortion.
Since the Supreme Court last month overturned the landmark Roe v. Wade Act of 1973 with its constitutional protections for abortion, the White House has been under considerable pressure to try to maintain access to abortion in conservative states that are willing to ban the procedure.
For example, advocates have implored Biden to seek to establish abortion clinics on federal land. They have asked the administration to help transport women seeking abortions to a state that offers the procedure. And Democratic lawmakers are pushing the White House to declare a public health emergency.
Without rejecting the ideas outright, White House advisers have expressed skepticism about such requests. And even as he signed an executive order last week to begin addressing the problem, Biden had a clear and consistent message: that he couldn’t do this alone, diverting attention to the other end of Pennsylvania Avenue.
“The only way we can ensure a woman’s right to choose and the balance that existed is for Congress to reinstate the protections of Roe v. Wade as federal law,” Biden said shortly after the court overturned Roe. “No executive action by the president can do that.
Shortly after declaring that filibuster, a Senate rule that requires 60 votes for most legislation to advance, should not apply to abortion and privacy measures, Biden acknowledged during a meeting with Democratic governors that his new position It wouldn’t make a difference, at least not right away.
“The filibuster shouldn’t get in the way of us being able to do that,” Biden said of including Roe protections in federal law. “But right now, we don’t have the votes in the Senate to change the filibuster.”
Biden, who served 36 years in the Senate, is an institutionalist to the core and has sought to operate within the constraints of those institutions, unlike his predecessor, Donald Trump, who repeatedly overstepped the limits of executive power.
But some advocates don’t want to hear from Biden about what he can’t do.
Renee Bracey Sherman, founder and executive director of the group We Testify, which advocates for women who have had abortions, said the administration should proceed with a public health emergency even if the courts ultimately block it.
“It tells those people who need an abortion that the president is trying to help them, and that what is stopping him is the court, not himself, or his own projections about what could happen,” he said, later adding: “The The fact that he’s an institutionalist and he can’t look around and see that the institutions around him are falling apart is the problem.”
Democratic lawmakers have also continued to pressure top administration officials behind the scenes. In a virtual meeting last week, Chu urged Xavier Becerra, the health and human services secretary, that the administration enact a public health emergency. Proponents of the idea say it would unlock certain powers and resources not only to expand access to abortion but also to protect the doctors who provide them.
Although Becerra did not rule out the idea, he told Chu and other members of the Congressional Progressive Caucus that the administration had two main questions: How would the administration replenish the money for the public health emergency fund, and what would this measure actually accomplish?
Skepticism has not deterred Democratic lawmakers. But some of the most ardent advocates of expansive executive action on abortion have similarly warned their voters and activists to be realistic.
“It’s unrealistic to think that they have the power and authority to protect access to abortion care in every part of this country because of what the Supreme Court has done,” said Sen. Tina Smith, a Democrat from Minnesota.
In a sense, the recent success with guns was a validation of Biden’s art-of-the-possible approach, advocates say. Instead of promising what he couldn’t deliver, Biden spoke of his limitations and warned that any substantive change would require the support of at least 10 Senate Republicans, a goal that seemed implausible at first.
That culminated last week with a ceremony marking the signing of the first substantial gun restrictions in roughly three decades.
“I think the president has struck the balance absolutely right,” said John Feinblatt, president of Everytown for Gun Safety.
Concerns about the limitations of Biden’s executive powers are not mere assumptions. His administration’s efforts to tame the coronavirus pandemic, for example, have been repeatedly thwarted by the courts, including requiring masks to be worn on public transportation and a vaccination mandate for businesses with at least 100 workers.
Then-President Barack Obama issued similar warnings when confronted by immigration activists urging him to use his power to pardon millions of young immigrants who did not have legal status in the US.
In 2012, Obama unilaterally enacted the Deferred Action for Childhood Arrivals program, which remains in effect today. Two years later, Obama more fully embraced the pen-and-phone strategy, signaling to Congress that he would not hesitate to use executive orders if lawmakers continued to jeopardize his national agenda.
“No one thinks they have a magic wand here. People understand there are limitations,” said Leah Greenberg, co-founder and co-CEO of the Indivisible Project. “What they want to see is him treating this like the crisis it is for people in red states losing access to abortion.”