The skies above the White House were cold and grey. Joe Biden greeted the championship winning Boston Celtics basketball team, quipping about his Irish ancestry and tossing a basketball into the crowd. But the US president could not resist drawing a wider lesson.
“When we get knocked down, we get back up,” he said. “As my dad would say, ‘Just get up, Joe. Get up.’ Character to keep going and keep the faith, that’s the Celtic way of life. That’s sports. And that’s America.”
Such events continue to be among the ceremonial duties of a “lame duck” president with waning influence. Biden has cut a diminished figure in recent months, first surrendering his chance to seek re-election, then finding himself sidelined by the doomed presidential campaign of his vice-president, Kamala Harris.
But with his legacy imperiled by Donald Trump, the president is facing calls to mitigate the oncoming storm. Advocacy groups say Biden, who turned 82 this week, can still take actions during his final two months in office to accelerate spending on climate and healthcare, secure civil liberties, and Trump-proof at least some fundamentals of US democracy.
Trump’s signature campaign promise was a draconian crackdown on illegal immigration. He has nominated officials including Tom Homan and Stephen Miller, architects of family separations at the southern border during his first term, and vowed to use the US military to carry out mass deportations of undocumented immigrants.
The plans include mandatory detention, potentially trapping immigrants in inhumane conditions for years as they fight deportation. The American Civil Liberties Union (ACLU) is leading an opposition effort, urging Biden to halt the current expansion of Immigration and Customs Enforcement (Ice) detention facilities, especially those with records of human rights abuses.
Eunice Cho, a senior staff attorney with the ACLU national prison project, said Ice detention facilities “characterised by abusive conditions, pervasive neglect and utter disregard for the dignity of people in their custody” were key to Trump’s logistical plan.
Dozens of people have died in Ice detention facilities – mostly owned or operated by private prison corporations – over the past four years, according to the ACLU, and 95% of deaths would probably have been preventable had appropriate medical care been provided. Yet the Biden administration has backed new Ice detention facilities in states where they did not exist before, such as Kansas, Wyoming and Missouri.
“We are calling on the Biden administration to take action now, in the final days of the administration, to halt any efforts to expand immigration detention and to shut down specifically abusive facilities once and for all,” Cho told reporters on a Zoom call this week. “We don’t need to put down runway for the Trump administration to put in place these mass detention and deportation machines.”
She warned: “We know that the anti-immigrant policies of a second administration are going to be far more aggressive than what we saw in the first term, and mass arrest and detention is going to become perhaps the norm to create and carry out these deportation operations unless we can do all we can to put a halt to them.”
View image in fullscreen
Another crucial area for Biden to make a last stand is criminal justice. In his first term, Trump oversaw the execution of more people than the previous 10 presidents combined. Biden’s attorney general, Merrick Garland, then imposed a moratorium on federal executions in 2021.
Trump has indicated his intention to resume such executions and even expand the death penalty. His nominee for attorney general, Pam Bondi, issued a public apology in 2013 while serving as Florida’s top law enforcement officer after she sought to delay the execution of a convicted killer because it conflicted with a fundraiser for her re-election campaign.
Cassandra Stubbs, director of the ACLU’s capital punishment project, told reporters over Zoom that Trump said “he will work to expand the death penalty. He’s going to try to expand it to people who do not even commit killings. He’s called for expanding the death penalty to his political opponents.
“But perhaps most dangerously in Project 2025 [a policy blueprint from the Heritage Foundation thinktank] – and we believe every word of it is this – he promised to try to kill everyone on death row, and the reason why we have to believe this and take it so seriously is the record that Donald Trump left where he, in a span of six months, carried out 13 executions.”
The ACLU and other groups are therefore pressing Biden to commute the sentences of all individuals on federal death row to life in prison, fulfilling a campaign promise and preventing potential executions under Trump. Commuting “is really the thing that Biden can do to make it harder for Trump to restart executions”, Stubbs added.
Pastor Brandi Slaughter, a board member of the pressure group Death Penalty Action, told reporters this week: “We know what the next president plans to do if any prisoners are left under a sentence of death under the Biden administration. We’ve been there, we’ve done that.”
Biden has also received 8,000 petitions for clemency from federal prisoners serving non-death penalty sentences that he could either reduce or pardon. The former senator has long been criticised for his role in drawing up a 1994 crime law that led to the incarceration of thousands of Black men and women for drug offences.
This week, members of Congress including Ayanna Pressley and James Clyburn led 64 colleagues in sending a letter to Biden urging him to use his clemency power “to reunite families, address longstanding injustices in our legal system and set our nation on the path toward ending mass incarceration”.
They were joined at a press conference on Capitol Hill by Maria Garza, 50, from Illinois, a prison reform advocate who spent 12 years in a state prison. She said in an interview: “There is a sense of urgency because a lot of the people that are sitting waiting for clemency are people that have de facto life sentences that will die in prison if they don’t [receive clemency]. A lot of their unjust sentencing was because of the 1994 crime bill that he was the founding father of.”
skip past newsletter promotionSign up to Fighting Back
Big thinkers on what we can do to protect civil liberties and fundamental freedoms in a Trump presidency. From our opinion desk.
after newsletter promotion
Mitzi Wall, whose 29-year-old son Jonathan is incarcerated on a seven-and-a-half-year federal cannabis charge, called on Biden to keep a campaign promise to grant clemency to more than 4,000 people in federal prison for nonviolent cannabis crimes.
“We voted for President Biden,” she said. “He gave us hope and we’re asking him to do nothing more than keep his promise.”
Wall, 63, from Maryland, added: “President Biden was partly responsible for writing the 1994 crime bill that thrust families into abject poverty and pain. I know he feels bad about that and he can right that wrong with the power of the pen. I’m appealing to him as a father whose son [Hunter] could very possibly be going to prison.”
In other efforts to protect civil liberties, the ACLU is recommending a moratorium on all federal government purchases of Americans’ personal data without a warrant. It is also asking Congress to pass the Fourth Amendment Is Not for Sale Act to prevent potential abuse of surveillance technologies under the Trump administration.
Meanwhile, Trump has pledged to rescind unspent funds in Biden’s landmark climate and healthcare law and stop clean-energy development projects. White House officials are working against the clock to dole out billions of dollars in grants for existing programmes to minimise Trump’s ability to rescind or redirect these funds. Earlier this month, the transportation secretary, Pete Buttigieg, announced more than $3.4bn in grants for infrastructure projects across the country.
Wendy Schiller, a political science professor at Brown University in Providence, Rhode Island, notes that Trump will have the power of impoundment to stall the money flowing out of the government and can order rescissions to programmes funded by Congress.
“The singular thing that Joe Biden can do is expedite the flow of federal dollars in all the programmes,” Schiller said.
“Any money that is supposed to leave the treasury to go to schools, food safety, environmental protection – anything that is not yet distributed needs to get distributed. It’s like emptying literally the piggy bank before you go on a trip. President Biden needs to be literally getting as much money out the door in the hands of state, local and community organisations as he can.”
Another priority for the White House is getting Senate confirmation of as many federal judges as possible, given the potential impact of the judiciary in challenging Trump administration policies. The Marshall Project, a non-profit news organisation, noted: “Federal judges restricted hundreds of Trump administration policies during his first term, and will likely play a significant role in determining the trajectory of his second.”
Senate Republicans forced numerous procedural votes and late-night sessions this week in attempt to stall confirmations. Eventually a deal was struck that will bring Biden within striking distance of the 234 judicial confirmations that occurred in Trump’s first term – but four of Biden’s appellate court nominees will not be considered.
The outgoing president could also engage with Democratic-led states and localities to bolster protections and establish “firewalls” against Trump’s agenda, particularly in areas such as immigration. These collaborations could involve reinforcing sanctuary city policies and providing resources to states that are likely to face pressure from the Trump administration.
Chris Scott, former coalitions director for Harris, said: “What will be interesting is how or what can President Biden to work with states, especially where we have Democratic leadership in place, to be able to brace themselves and arm themselves with more protection. We already have places like a Michigan or Illinois where you have governors vowing to make sure that they have protections – even in the Trump presidency.”
As Barack Obama discovered before handing Trump the keys to the Oval Office in 2017, however, lame duck presidents can only do so much. Trump will come into office with a flurry of executive orders, a supportive Congress and fewer guardrails than the first time around.
Bill Galston, a former adviser in the Bill Clinton administration, said: “On January 20 Donald Trump will control all the instruments of government and, at that point, it’ll be up to the courts – and public opinion – to restrain him.”
∎