As the first 100 days of the Biden presidency draw to a close, Global Insight assesses whether the administration looks set to ‘build back better’, or simply reset the United States to the pre-Trump era.

Header pic: US President Joe Biden signs executive orders on immigration reform inside the Oval Office at the White House in Washington, US, 2 February 2021. REUTERS/Tom Brenner

The first 100 days of a US president’s term usually give a strong sense of what’s to come, as the new administration identifies its key priorities and signals how far it will go to achieve them. When President Biden’s first 100 days come to an end on 20 April, he will have spent much of them tackling the Covid-19 pandemic and working to undo the destructive force of the Trump presidency.

But Biden has promised to not just reset the US to the pre-Trump status quo, but to ‘build back better’. For human rights advocates and the broader international community, questions remain as to how much further Biden will go to address the structural problems that enabled the Trump administration, and the pandemic, to do so much damage.

Wade McMullen, Senior Vice-President of Programs and Legal Strategy at Robert F Kennedy Human Rights, says ‘there are so many things – whether it’s immigration, the continuation and even expansion of the war on terrorism under the Obama administration, the abandonment of everyday workers and economic inequality, and the prioritisation and the favouritism of the finance sector, capital and the wealthy – that need to be addressed, none of which was in good shape prior to Trump’.

Kick-starting the administration

The Biden White House has seven presidential priorities: Covid-19; the climate emergency; racial equity; America’s economy; quality, affordable healthcare; reforming the immigration system; and restoring America’s global standing.

On his first day, Biden signed 17 executive orders in line with these priorities, setting a historic record. (See box: Day one).

One of the first was for the US to re-join the Paris Agreement. More climate-related orders have followed, including establishing the position of a National Climate Advisor to lead the new office of Domestic Climate Policy. The administration is taking a ‘whole of government’ approach that ensures the climate emergency is a priority and a consideration across the board.

For John Cruden, ‘the executive orders are a great “kick-start”, but more needs to happen’. Cruden is the former Senate-confirmed Assistant Attorney General in the Environment and Natural Resources Division of the US Department of Justice. He’s currently Principal at law firm Beveridge and Diamond, and an adjunct professor at George Washington University.

He sees the orders as memos setting out Biden’s expectations for the administration’s future, which must ‘be converted to real, substantive action, such as precise regulations, following notice and comment procedures, international commitments, and real, substantive changes leading to a significant reduction in greenhouse gases’.

Cruden believes ‘the Biden climate platform is far broader than anything we have seen before and will impact and join virtually every federal agency in the endeavour’.

‘This “whole of government” approach’, he tells Global Insight, ‘leaves plenty of room for future regulations, congressional legislation either big or small, and corporate voluntary compliance efforts’.

And the climate team announced by President Biden, he says, is a dream team. It includes former Secretary of State John Kerry, former US Environmental Protection Agency Administrator Gina McCarthy, former Deputy Secretary of Interior David Hayes, the Obama administration’s leader of climate issues Brian Deese, among others.

‘Even the appointments at agency levels, such as Ann Carlson as Chief Counsel of the National Highway Traffic Safety Administration, puts a climate expert in a key position’, Cruden adds. ‘People are policy, and these people are extraordinary.’

‘We the people’

For rights advocates, the Biden administration’s recognition and respect for certain peoples – through appointments, orders and affirmative action – is necessary to ensure that the violence of social prejudices that worsened under the Trump administration is curtailed.

D’Arcy Kemnitz is Co-Vice Chair of the IBA Lesbian, Gay, Bisexual, Transgender and Intersex Law Committee, and Executive Director of the National LGBT Bar Association based in Washington, DC. She highlights that ‘in the past four years hate crimes across the US rose exponentially, not just against the LGBTQ+ community’.

She is ‘deeply relieved to see President Biden and Vice-President Harris take express and affirmative steps to protecting the LGBTQ+ community and, indeed, all Americans’.

Kemnitz highlights Biden’s signing of an executive order that affirms the rights and responsibilities detailed by the US Supreme Court Bostock v Clayton County (2020) decision, which states that Title VII of the 1964 Civil Rights Act protects employees from being discriminated against on the basis of sexuality or gender identity. She says the order ‘expressly clarifies how the law is expected to be applied from now on, so there’s a very positive sense of codified law’.

Deb Haaland is Biden’s pick for Secretary of the Interior. She’s a Laguna Pueblo from New Mexico and has historic ties with indigenous peoples. Paterson highlights that Haaland sat on the House Subcommittee on Indigenous Peoples of the US and also has a strong interest in climate issues.

Paterson says relations with Native Americans hit a low point under Trump, who did not fill the White House’s advisory position. On Biden’s first day, he signed a new executive order, which reinvigorated one created by former President Bill Clinton. This order calls for open consultation between all federal government departments and indigenous tribes and nations. He added deadlines for communication plans and identified four key areas of concern, giving the order more strength and focus.

That, Paterson says, is a way of trying to establish lines of communication so there’s some direct input by Native Americans into policies that may affect them. ‘Consultation, of course, is fundamental. You can’t accommodate indigenous peoples interests without consulting them’, he says. ‘On the other hand, consultation doesn’t necessarily bring about reconciliation.’

Paterson also highlights that the executive order on measures relating to Covid-19, ‘provides that Tribes will have access to the national emergency stockpile and the different Covid-19 relief that’s available, including medical equipment, and that they will have access to resources through the Federal Emergency Management Agency, with 100 per cent of the cost borne by the federal government’.

Paterson adds that most of the indigenous people he’s heard speak on the subject have been guardedly optimistic. ‘They like the language, but the proof is in the pudding’, he explains. ‘The story of indigenous affairs, and it’s true in Australia, Canada, New Zealand and the US, basically the settler colonies, is that there tends to be a fair amount of good words and sometimes even good intentions, but it often gets difficult once you get down to implementing it.’

Intention versus implementation is a key theme for other human rights issues too.

Mixed messages

‘While there’s rhetoric and signs of hope that we’re going to go further than just repealing all the harmful actions that Trump took’, McMullen says, ‘we’re seeing very little by way of concrete progress towards that’.

In the first days of his administration, Biden ended support for offensive military operations in Yemen. However, McMullen highlights, ‘Biden’s also unilaterally launched rockets into Syria that unquestionably violated international law, maintaining the status quo – pre-Trump and through Trump – of the US unilaterally disregarding international law on matters of aggression’.

Further, when a US intelligence report released in late February concluded that Saudi Crown Prince Mohammed bin Salman approved the extrajudicial killing and dismemberment of journalist and US resident Jamal Khashoggi, the Biden administration simultaneously announced that it will not take accountability measures towards bin Salman personally. McMullen calls the administration’s reaction ‘hugely disappointing’ for the human rights community.

Workers’ rights are also a mixed bag. McMullen says, ‘the Biden administration took a pretty bold move relative to the norms of US politics in firing the general counsel from our National Labour Relations Board, who’s extremely hostile to unions and workers’ abilities to engage in collective bargaining and freedom of association’.

‘But at the same time’, he says, ‘they’ve completely given up on a $15 minimum wage’.

Biden did sign into law a $1.9tn stimulus bill that studies suggest could cut poverty in the US by a third, but the measures are focused on addressing the economic harms of the Covid-19 pandemic and end in 2022.

Kermit Lowery, Secretary-Treasurer of the IBA Poverty and Social Development Committee and Vice President of Legal Research Solutions at LexisNexis Legal & Professional, tells Global Insight that he hopes some of the anti-poverty measures, like child credits, will be extended beyond 2022.

Lowery says to tackle wealth inequality and racial justice in the US, Biden’s administration needs to create economic development and improved infrastructure in impoverished communities, such as public transportation. Improving access for impoverished people to education beyond high school is also essential, as is expanding affordable healthcare.

However, he believes, ‘Congress is so polarised that to get anything done on a bipartisan basis, Biden is going to have to be less progressive and more moderate’.

Further, ‘if in 2022 there is a shift in the structure of Congress where Biden¬¬ no longer has that majority, he can forget it, he won’t get any legislation through at that point’, Lowery adds.

For McMullen, ‘what we’re seeing now is putting the administration’s rhetoric to the test. Sometimes they’re willing to expend their political capital to do things that take us a little bit further than the pre-Trump status quo, but those have been few and far between’.

Historic injustice

Racial justice is a presidential priority for this administration, and Biden signed an executive order turning that priority into a pledge to focus on advancing racial equity through policy and systemic change.

McMullen says Biden has mostly rolled back Trump’s policies and taken some symbolic measures. One major announcement on criminal justice reform was to end the use of private prisons in the US, but ‘Obama had done the same thing. That’s uncontroversial’, McMullen says.

He highlights that Biden’s pick for the third highest position in the Department of Justice is Vanita Gupta, who disavowed during her confirmation that she would defund police departments. Some advocates argue that this is essential to tackle the disproportionate and excessive force used by police officers against Black individuals.

One positive sign comes from Congress, where a piece of legislation currently under consideration, McMullen says, ‘would increase our ability to hold police officers accountable by ending the pretty much blanket immunity that they enjoy for extrajudicial killings and torture and mistreatment. And we don’t have any doubt that should that legislation be passed by Congress, Biden will sign it’.

But when it comes to reparations for historical racial injustice, McMullen believes ‘the most that we’re going to see is the Bill that's currently before the House of Representatives, HR 40, that establishes a commission to study and make recommendations. Politically speaking, just pragmatically speaking, it’s hard to see this administration doing anything more than that’.

Lowery says he doesn’t know what the solution is, ‘because there are so many systems that have systemic racism built in. We need to eliminate that and convince the country that having Black and brown people in positions of power doesn’t mean that they’re going to mistreat you’.

‘The white power structure in the country today fears that if ever Black and brown people are in control of the Congress and they have a more equal footing, that they’re going to take revenge on what used to be the white majority, because of the way Black and brown people have been treated throughout the history of this country’, says Lowery.

However, he doesn’t believe the majority of Black or brown people in the US feel that way at all. ‘They just want to be left alone. They want to be given an equal opportunity’, he says. ‘They want their kids to be educated and have a chance to pursue the American dream.’

‘Profoundly disappointing’

Another cause for concern is gender inequality. Akila Radhakrishnan, President of the Global Justice Center, says that on some issues Biden has said the right things and taken the right initial steps, but on abortion the administration has been ‘profoundly disappointing’.

Radhakrishnan notes that the Biden administration has shown its comfort and ability to stand up against white supremacy, and to stand up for LGBTQ+ rights, at least in rhetoric and initial gestures. She asks, ‘so when it comes to abortion, why are we seeing them not utilise the terminology of abortion? Why have we seen nothing on broader commitments beyond repealing the gag rule?’

Like previous Democratic presidents, Biden signed an executive order rescinding the global gag rule, which is a US foreign policy restricting foreign non-governmental organisations that receive US global health funds from using their resources to engage in abortion-related work.

But Biden also made it clear that he was not going further. ‘This is going back to what the situation was prior to the [former] president’s executive order’, he said.

Radhakrishnan notes that the US says it stands up for the rights of women globally but continues to implement the 1973 Helms Amendment to the Foreign Assistance Act – which limits the use of US foreign aid for abortion – and the Hyde Amendment, which blocks federal funding for abortion care in the US except in cases of potential maternal mortality or for pregnancies resulting from incest or rape.

‘What we need – especially because abortion was an area of such full-fledged attack from the Trump administration – is to see a strong commitment towards remedying these harms, and the way to long-term remedy them is not just to reject Trump, but for the US to take a position of leadership in saying that abortion is in fact protected under international human rights law’, she says. ‘And we’ve seen no indications that those are stances that they plan to take.’

She adds, ‘the US always talks about wanting to restore their leadership, but have we earned it? On issues of women’s rights, when the situation is so dire in the US, do we deserve to be in a position of leadership?’

‘There is a need to hold the US accountable to a certain level of consistency on these matters’, she says. ‘And that’s the kind of thing that one would hope that the Gender Policy Council could help with.’

Biden’s Gender Policy Council is a reincarnation of the Obama administration’s White House Council on Women and Girls, with a more inclusive approach to gender and a particular focus on race.

What matters, Radhakrishnan says, is whether the Council’s recommendations will be put on a strong footing, and whether there will be a systematisation of gendered analysis that ensures the Council is enabled to influence policy decisions across government departments.

Challenges in Congress

In Congress, the Global Health, Empowerment and Rights Act has been proposed to protect abortion rights from subsequent executive orders reinstating the global gag rule.

‘Congress has certainly been showing their ability to push’, Radhakrishnan says. ‘Some of these newer voices in Congress are helping to shift conversations – not just on gender, but on a range of issues that would not have been possible before.’

But legislating change through Congress is challenging. McMullen notes the Biden administration is ‘being stymied by members of their own party, not even the political opposition. That’s going to be the litmus test to see how far Biden is going to go in prioritising human rights at the centre of his administration’.

Aleksandar Stojicevic, Refugee Officer of the IBA Immigration and Nationality Law Committee and Founding and Managing Partner of MKS Lawyers in Vancouver, says ‘many in the Biden administration want comprehensive reform on immigration generally, which includes pathways for undocumented people in the US to citizenship. But that’s an incredibly difficult proposition without a filibuster-proof majority in the Senate. And there doesn’t seem to be much political will to do that’.

He says refugee lawyers and human rights lawyers fear that the US will return to the Obama-era approach to immigration. ‘For eight years’, Stojicevic says, ‘the Obama administration effectively paid the Mexican government to keep most asylum seekers outside Mexico stuck at the Guatemala border’.

Stojicevic believes the Biden administration will do the same, although it appears the US will return to more pro-development policies and support for rule of law in Central America. ‘Those initiatives may indirectly have some impact on migration movements, medium and longer-term’, he says.

The Biden administration also plans to restrict detention to 72-hour reception centres to help people quarantine and then relocate with sponsors and in communities in the US, tracked with an ankle monitor or via periodic phone calls, while awaiting decisions on their asylum claims and immigration cases.

‘But is this going to be an amazing progressive immigration policy? Absolutely not’, Stojicevic says. ‘The proposal is that you’re on a monitoring system, but they’re not facilitating you getting any kind of temporary work rights, a social security number or any other benefits. What are people supposed to do?’

He adds, ‘if Biden spent the same amount of funding on migration processing as they do on enforcement now, migration processing wouldn’t be a problem. Detention wouldn’t be a problem because you’d move people through the system more quickly’.

Paterson highlights that there are already concerns in Congress about how much Biden’s plans will cost, and concerns from advocates about which priorities will last. ‘Most presidents find that they can focus on a couple of big issues. Which issues Biden will be willing to fight on has yet to be seen.’

McMullen, however, doesn’t believe ‘we can accept that kind of conventional wisdom. If we’ve learnt anything from the last four years, it’s that the norms of US politics are not set in stone’.

‘There is a mandate to have a legislative agenda that doesn’t compromise when it comes to human rights, not only seeking accountability, but furthering the protections and fulfilment of essential human rights for everyone’, he says. ‘But, as we’ve seen in the past, it’s up to the people to continue to push the elected officials to make that a reality.’

Kemnitz believes that the insurrection in January has had an impact on that push. ‘To have been on the precipice where our own government was under attack by vigilantism, just to have been that close to losing our democracy means so much to Americans. So, I think we’re going to see a renewed commitment from all the social justice groups.’

Jennifer Venis is Multimedia Journalist at the IBA and can be contacted at jennifer.venis@int-bar.org