AuthorShane, Peter M.
PositionMitch McConnell

After four years of President Donald Trump, Democrats have no shortage of "first day" ideas for President-elect Joe Biden. A team at The American Prospect recently scanned a no-page set of recommendations published in July by the Biden-Sanders Unity Task Force and uncovered what it believes are "277 policies that are clearly within the executive branch's power to immediately pursue, at least in part." Biden's wide circle of advisers have no doubt made some lists of their own.

The urgency among Democrats, however, poses a knotty political dilemma for Biden. The pandemic, climate change, a faltering economy, a continuing crisis of police violence, and a seeming administrative meltdown in the Department of Homeland Security (DHS) unquestionably present a daunting menu of challenges clamoring for immediate attention. But Democrats have also spent four years railing against Trump's absurdly broad interpretations of executive power and his pugnacious evasion of legal, political, and journalistic accountability. Any effort by Biden to change policy direction quickly will be met, whether in good faith or bad, by accusations of hypocrisy.

But the president-elect has more tools for staffing the new administration and jump-starting the process of undoing Trump's policies than may be apparent, including a tool that no president has ever used before--one that Senate Majority Leader Mitch McConnell would be powerless to block. More on this later. But it's clear that Biden's choice of tools and how he deploys them will signal his taste for aggression in using the powers of the presidency.

Staffing the Executive Branch

Reports are already appearing that McConnell is determined, if he's still the majority leader, to hamstring Biden's choice of cabinet members and subcabinet officials. Using the Senate's advice-and-consent power to deny a president wide discretion in picking cabinet officers would break a long-standing norm. But confirmation norms were already shredded in 2016, when McConnell stonewalled Merrick Garland's nomination to the Supreme Court. Should Democrats fail to capture the two Georgia Senate seats up for grabs in January, a GOP majority could impede Biden by slow-walking his nominees and blocking at least some of his preferred candidates altogether.

Past presidents have sought to put their stamp quickly on executive branch policy making through the appointment within the White House staff of key policy "czars." The term lacks precise definition, but generally refers to advisers tasked with coordinating a specific area of policy across agency lines. A few of these, such as the so-called drug czar, hold statutory offices; their appointments require Senate approval. But most can be appointed without consulting the Senate. President Barack Obama broke new ground in terms of the sheer number of policy czars he appointed early in his administration. Some were conspicuously assigned to advance elements central to Obama's campaign promises, including a climate czar, an urban affairs czar, and a health czar. The move predictably provoked GOP protest that Obama was doing an end run around the Senate's advice-and-consent role.

A czar-oriented strategy, however, has one conspicuous limitation: Most czars have no statutory authority. These advisers thus lack the legal power themselves to undo the policies of the administrative agencies that populate the executive branch. The power to sign off on new rules or to issue public-binding administrative orders rests with agency heads and other officers in the executive branch in whom...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT