Biden’s First Priority: Undo the Damage Done by Trump

President Biden can make progressive appointments and executive actions—no matter who controls the Senate.

Rick Perlstein

(Photo by Samuel Corum/Getty Images)

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.

“Personnel,” the strategists of the Reagan administration liked to say, “is policy.”

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 régime, 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. 

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