PUBLISHED:February 09, 2021

Duke Law faculty preview "The Next Four Years" in five key areas of law and policy

Duke Law faculty previewed expectations for the Biden presidency in five key areas of law and policy. Duke Law faculty previewed expectations for the Biden presidency in five key areas of law and policy.

Professors Curtis Bradley, Guy-Uriel Charles, Kate Evans, Stephen Sachs, and James Salzman participated in a panel discussion on Feb. 8 titled “The Next Four Years” during which they outlined the biggest changes they expect to see from the Biden administration. Sponsored by the Office of the Dean and the Program in Public Law and moderated by Professor Marin K. Levy, the discussion covered immigration, environmental policy, voting rights, the judiciary, and foreign affairs. Following are excerpts from the presentation.

William Van Alstyne Professor of Law and Professor of Public Policy Studies Curtis A. Bradley

On major substantive differences between the Trump and Biden approach to foreign policy:

“The biggest thing that we are already seeing is going to be re-engagement with international institutions, treaty regimes, and allies after the Trump administration’s very different so-called “America first” approach. ... The Biden administration has moved to have the U.S. rejoin the Paris Agreement on climate change. It also stopped the U.S. withdrawal from the World Health Organization, which Trump had initiated, and my guess is we’ll see an effort to get the U.S. back into some nuclear deal with Iran. We are seeing already steps to try and rebuild alliances, including with NATO.

“I also think we are going to see a much greater emphasis in the next four years on human rights and democracy promotion as part of American foreign policy than we saw the last four years. We’re starting to see it already with the withdrawal of U.S. military support for the Saudi conflict in Yemen, given the atrocities there, and also a strong condemnation the other day of the coup in Burma, also known as Myanmar. And the administration announced today that it was going to move to rejoin the U.N. Human Rights Council.

On relationships with other countries: 

“I think we’re likely to see a more adversarial relationship with Russia than we saw under Trump. But I think that Biden will also try to work with Russia, particularly on things like arms control and in fact one of his first acts was to agree with Russia to extend the new START treaty by five years, which limits nuclear armaments, and I think we’ll see more of that.

“There will be some overlap between Trump and Biden. Biden, like Trump, does not like forever wars or significant troop engagements overseas. And I think like Trump, and also Obama, he will look for using targeted uses of force and drone strikes and the like to deal with the ongoing problem of international terrorism. I think, like Trump, Biden is also going to have a pretty adversarial relationship with China, particularly on trade issues, and like President Trump, I think Biden may favor some protectionist policies. He’s already issued a “Buy American” order. Having said that, I think the Biden administration will be more interested in working with the World Trade Organization and being supportive of that institution and its settlement provision for trade disputes.

“Another big relationship is with Israel. I think we are likely to see something much closer to what we’ve seen in presidencies before Trump, that is, basically treating Israel as a close ally, but continuing to encourage it to work towards a two-state solution with the Palestinians, but I wouldn’t expect significant reversals of Trump policies and concessions to Israel, like having moved the U.S. embassy to Jerusalem.”

Clinical Professor of Law and Immigrant Rights Clinic Director Kate Evans

On the Biden administration’s executive order recalibrating its approach to immigration:

“This executive order started by stating that immigrants have helped strengthen America’s families, communities, businesses, and workforce and economy, infusing the United States with creativity, energy, and ingenuity. The Department of Homeland Security followed this order and these sentiments with an announcement that it would prioritize enforcement against individuals who represent a national security threat, people with convictions designated as aggravated felonies, and recent border entrants. This targeted policy eliminates the prior dragnet approach that sent up longtime residents, business owners, essential workers, crime witnesses, and DACA recipients into deportation proceedings.

“In this way, it’s a significant first step to re-prioritizing and realigning our resources with our national interests. But I hope we will see, in addition, substantially greater independence in the immigration courts. This is an institution that has been in desperate need of reform for years but saw a particular erosion under the prior administration’s case quotas and regulations that made defending our clients from deportation a Herculean task in the clinic.

“I also hope that the Biden administration takes seriously its stated commitment to racial justice, decarceration, and public health in the context of immigration detention. At the start of the pandemic, taxpayers spent more than $2 billion a year to jail about 56,000 people every day, the vast majority of whom are Black and brown. The detained population is now down to about 15,000 per night, an acknowledgment of how out of control the prior detention policy was.

“The U.S. policy preventing asylum-seekers from entering the country to pursue their applications here resulted in the creation of refugee camps on the Mexican side of the border, a practice the Biden administration has also announced it will no longer follow. On top of this we are also seeing a full and complete, top-to-bottom review of the layers and layers of restrictions to asylum and refugee protections. It will be no small feat to undo the damage to these laws. I hope that as a result of this review though, the U.S. will return to its place as a country that embraces our responsibilities under international law to protect and welcome refugees.”

Fall 2020 Visiting Professor of Law James Salzman

On changes to environmental law and policy: 

“I want to outline four big stories. The first is high profile. One week after taking office, Biden declared “Climate Day.” He signed an executive order on the climate crisis. This detailed immediate actions, prioritized regulatory reversals, and guided procurement – all very broad ranging. There’s a public commitment to science-based decision-making which, given the past administration, actually represents a major reversal in policy. There was more focus on the environment in the first ten days of the Biden administration than in any prior administration in the first 100 days.

“The second major story is climate. Biden has already made this a very high priority, and not just at the EPA. What is important is that it represents a coordinated effort across government. Gina McCarthy, the former head of the EPA, is working out of the White House. She is going to be controlling domestic climate policy. John Kerry, former secretary of state, is going to be coordinating international climate policy. These are big-time heavy hitters. And they took the jobs because they were promised a government-wide approach. 

 “The third big thing to look for is environmental justice. Deb Haaland is head of Interior, Michael Regan is head of the EPA, Brenda Mallory is head of the Council on Environmental Quality. Haaland is a Native American woman. Regan is a black man. Mallory is a black woman. Never before have any minorities headed these agencies, much less all at the same time. Biden is sending a very clear message that all of the environmental initiatives across the major environmental agencies will have environmental justice issues in clear focus. 

“And the fourth big issue is reversing course. The Trump administration basically put a bullseye on environmental and natural resources policies. This is easy to do with executive orders; it’s just a stroke of the pen. It’s not easy to do with regulations. ... These agencies have limited resources and have to make basically a rulemaking record to reverse the regulation, then they can promulgate the new regulation. They’re going to have to choose their priorities very carefully.

“The key point is environment is a focus like never before.”

Colin W. Brown Professor of Law Stephen E. Sachs

On changes to the Supreme Court:

“For the moment there’s little potential for new appointments unless Justice Breyer chooses to retire,. The more complicated question is whether the administration is going to explore other kinds of changes to the Supreme Court or its structure, whether packing the Court, by adding additional seats, limiting the justices’ good behavior terms, or even having a rotating cast of circuit judges stand in. These ideas were floated during the Democratic primary and right now the administration is putting together a commission to study the courts and to make recommendations. Its co-chair, Bob Bauer, has been skeptical of court-packing, as has President Biden himself, but he has supported term limits for judges, which might face some serious constitutional problems.

“From the public reporting, the commission includes some folks who have been pretty vocal in favor of changing the judiciary, but also Harvard’s Jack Goldsmith, who for a time headed the Office of Legal Counsel in the George W. Bush administration, so it’s not clear yet whether the commission is the first step towards a revolution in the courts, or whether this is a way of defusing pressure from the left by creating a place where proposals go to die.”

On changes to other federal courts:

“On the circuit and district courts, we do see a number of vacancies starting to open. A number of judges on various circuits have started taking senior status, and the same with the district courts.

“The administration thus far has made two moves of note. First, they’ve decided to follow the Trump administration in not having the American Bar Association vet candidates in advance. And not having ABA vetting allows the administration to move a little bit more quickly to make nominations and staff positions. Second, the White House Counsel’s office, led by Dana Remus, has said that they’re looking for a different kind of candidate than may have been traditional. Many judges are prosecutors or former government lawyers. Remus has told senators that the administration would like to see former public defenders, former civil rights and legal aid attorneys, other nontraditional candidates suggested for district court nominations. That could have a real impact on the makeup of the courts.”

Edward and Ellen Schwarzman Professor of Law Guy-Uriel Charles

On the push to expand voting rights by passing H.R. 1 For the People Act:

“H.R. 1 is actually much more than a voting rights bill. It’s an election law bill. And in some respects, it would completely redo so much of what we think about election law and the American space. With the voting rights aspect, fundamentally it does two things that one would expect a voting rights act to do. First, it recognizes very explicitly that voting is a constitutional right, the right to vote is a fundamental right of citizens of the United States. And from that operating principle, it then goes on to do a number of things, starting with focusing on making the exercise of the right accessible, and it explicitly says that the right is hollow if it is not accessible, and both the failure to recognize that voting is a fundamental right as a matter of American positive law, statutory law, and the inability to make that right accessible have been major deficiencies of the American voting rights system.

“H.R. 1 shifts the burden from individuals to the state, it centralizes election administration and voting practices, it standardizes voting practices, it limits state discretion, and it expands on the electorate. ... So in many respects it would really transform American voting practices.

“On campaign finance, it redefines and changes American campaign finance laws. It does a number of things on ethics and lobbying reform. It addresses cybersecurity and election security. So it really is an omnibus bill that attempts to restructure not just voting rights practices but election law in the United States writ large.”