In 1978, when a law was about to pass expanding the size of the federal judiciary, President Jimmy Carter complained in his diary. He would have “150 new judges to appoint, which I certainly don’t want. In this four-year term I will have appointed more than half the total federal judges in the United States.” Carter’s complaint helps explain why he was such an ineffectual president: In a constitutional system that throws up bottlenecks in the path of change at every turn, a president must welcome every legitimate avenue for maximizing power if they want to get anything done. This lesson is one President-elect Joe Biden must heed as he enters the Oval Office with, at best, a 50-50 tie in the Senate (pending Georgia’s runoff elections) and virtually no chance of passing meaningful legislation.
For instance, current Senate Majority Leader Mitch McConnell is signaling his intent to shred the 230-year-old precedent granting new presidents the wide latitude to staff the government. Though Cabinet appointments have only been blocked nine times in Senate history, the Republicans, according to Axios, intend to limit Biden appointments to only those “Mitch McConnell can live with.”
So what should Biden do? Blaze full steam ahead with progressive appointments anyway.
The Revolving Door Project, an anti-corruption group, notes that, thanks to the Vacancies Act, Biden has “an indisputably legal channel to fill Senate-confirmed positions” — there are more than 1,200 of them — “on a temporary basis when confirmations are delayed.” The law was first passed in 1868 and has been “used extensively by presidents of both parties” to appoint administrators on a temporary basis without Senate approval. According to the Congressional Research Service, the intent of the law is to prevent the “business of government” from being “seriously impaired” by a lack of personnel leading key departments.
President Donald Trump badly distorted this intent, of course, by appointing innumerable “acting” administrators to top positions — such as Secretary of Homeland Security Chad Wolf and Drug Enforcement Administration head Timothy Shea — but not because he couldn’t confirm permanent ones. (Trump had a friendly Senate, after all.) No, Trump did it because, he says, it gives him “more flexibility,” which is to say, his appointees become vassals who owe their loyalty only to him. If used by Biden, the Vacancies Act would work as intended: to make government more responsive, not less.
Another measure Biden could use to delouse the federal government with even greater efficiency is Article II, Section 2 of the Constitution. It allows the president to adjourn Congress, then, after 10 days of recess, the president can make recess appointments, another kind of temporary appointment that does not require Senate approval. Given a Republican Senate determined to hold the entire administrative state hostage (as it did with Merrick Garland’s Supreme Court nomination) — and with Covid-19’s raging second wave imperiling public health and global warming being an existential threat, to cite only two cataclysms bequeathed by Biden’s predecessor — Biden has a moral obligation not to subject executive appointments to the veto of an anti-democratic, inhumane, anti-science reactionary like McConnell.
“Personnel,” the strategists of the Reagan administration liked to say, “is policy.” Daniel Biss, a former state senator in Illinois, tells a story. A few years back, he talked to Sen. Elizabeth Warren (D-Mass.) about a bill he was passionate about, to close an absurdly corruption-enabling loophole in Illinois (and several other states). Fees paid to firms investing public pension funds are the only state expenditure not required to be publicly disclosed. Warren responded that the law would be all well and good, “but know this: you shouldn’t have to pass that law, because the Securities and Exchange Commission already has the power to solve the problem you’re trying to solve, but they’re too cowardly to do it. And if only we had a president who appointed the right people to serve on the SEC, the problem would go away like that.” Warren snapped her fingers.
Biden undoing Trump’s executive actions — and deploying those of his own — comprise another reservoir of power. The president has a lot of discretionary power to enforce the law and allocate (or not allocate) managerial resources — but that power lasts only as long as they are president. The Migration Policy Institute has documented more than 400 Trump executive actions limiting immigration, for instance. Fixing those should keep the Biden administration busy for some time — filling the time freed up by not having to propose new legislation that likely wouldn’t pass the Senate until after the 2022 midterms anyway.
The Revolving Door Project scoured the proposals of the Unity Task Force (which brought together officials from Biden’s and Sen. Bernie Sanders’ presidential campaigns) and found 277 recommendations upon which, according to Revolving Door’s Max Moran, “leaders in the moderate and progressive wings of the party broadly agree, that Biden should have no excuse not to enact, save for his own policy preferences.” Not one requires Congress, and many are most definitely not the old 1990s New Democrat bromides of safe, staid moderation. Three examples: reclassifying marijuana with the Drug Enforcement Administration (which could effectively decriminalize pot and finally allow dispensaries to have bank accounts); transitioning all 3 million government vehicles to zero-emissions models; turning America into a safe harbor for refugees.
Here is my own recommendation, number 278: Biden can encourage his Justice Department to reverse the pathetic 45-year-old tradition of letting Republican administrations get away with crimes. President Richard Nixon paid off burglars to perjure themselves, and President Gerald Ford pardoned him. Reagan officials broke the law to fund right-wing paramilitary insurgents in Nicaragua (and paid for it by selling arms to Iran), and President George H.W. Bush (Reagan’s former vice president) pardoned them. Bush’s son, President George W. Bush, supervised a torture and spying regime, and President Barack Obama refused to investigate, saying, “We need to look forward as opposed to looking backward.”
Now, the Trump administration is guilty of crime after crime, from the president’s own serial obstructions of justice to Commerce Secretary Wilbur Ross lying to Congress about sabotaging the 2020 census. It’s a pattern: each Republican administration more contemptuous of the law than the last. Imagine how the next one will act if this norm of elite non-accountability is allowed to continue.
Biden can do all of these things whether he has 50 senators or none. He can begin the work, much of which he says he wants to do, if he is serious about power — and if our republic, not to say our planet, is to endure.
Rick Perlstein, an In These Times board member, is the author of Reaganland: America’s Right Turn, 1976-1980 (2020), The Invisible Bridge: The Fall of Nixon and the Rise of Reagan (2014), Nixonland: The Rise of a President and the Fracturing of America (2008), a New York Times bestseller picked as one of the best nonfiction books of the year by over a dozen publications, and Before the Storm: Barry Goldwater and the Unmaking of the American Consensus, winner of the 2001 Los Angeles Times Book Award for history.