Washington Monthly - September/October 2020 - 114

Repeal-Proofing
the Biden
Administration
As Democrats design their policy agenda,
they must think about not just how to get new
laws passed, but how to make them durable.
By Eric Patashnik

Congress in Reverse:
Repeals from Reconstruction
to the Present
by Jordan M. Ragusa and
Nathaniel A. Birkhead
University of Chicago Press, 184 pp.

114 September/October 2020

n an effort to build enthusiasm among progressives, Joe Biden is promising a series of ambitious policies to tackle problems like economic inequality, racial bias in
the criminal justice system, and climate change. Biden is calling for a government-run
health insurance option, an end to cash bail and mandatory minimum sentences, and
the instillation of 500 million solar panels across the country over the next five years.
In his recently released climate plan, he proposed spending $2 trillion to make the U.S.
power sector carbon free by 2035.
If he wins the election, Biden will face fierce resistance from Republicans in his efforts to carry out most of these policies. He will probably encounter some opposition
from moderate Democrats, as well. Yet if his party captures both houses of Congress
as well as the White House, it's likely that some-if not all-of these promises will become realities.
But that doesn't mean all of them will stay realities. At some point, Republicans will
have power again, and they will target Biden's biggest achievements, just as they did
Barack Obama's. During the first two years of the Trump administration, for example,
the GOP successfully managed to repeal the Affordable Care Act's individual mandate
and roll back some of the banking regulations contained in the Dodd-Frank financial
reform bill (the latter with support from some Democrats).
The consequences of repeals can be far-reaching. Eliminating the individual mandate
has not led to the collapse of the ACA's markets, as some feared (or hoped) it would,
but it has helped increase the uninsured rate, just in time for the pandemic. Repeals
passed with cross-party backing can have equally significant impacts. The federal government's response to deep poverty in the face of the COVID-19 recession would likely have been faster and more reliable if Congress had not repealed Aid to Families with
Dependent Children (AFDC) and replaced it with Temporary Assistance for Needy
Families (TANF) in 1996. Whatever AFDC's defects as a program to encourage labor
market participation, its entitlement design ensured that safety net spending went up
automatically as demand for assistance climbed. By contrast, TANF's block grant funding is much less responsive to increases in economic need.
The risks of repeals mean that as Democrats design their bills and policies, they'll
have to think about not just how to get them through Congress and past the courts,
but also how to make them durable. To do that, they would be wise to read Congress in
Reverse, by the political scientists Jordan M. Ragusa (College of Charleston) and Nathaniel A. Birkhead (Kansas State University). The book provides valuable insights into what
kinds of laws are most fragile, and when. As the authors show, the two key factors in
driving repeal attempts are partisanship and recency. Parties, especially when ideologi-

Washington Monthly - September/October 2020

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