Democrats to Biden: Go big on executive actions, even with Senate control

The Georgia Senate elections may have given Democrats more opportunities to pass their legislative agenda. But progressives want quick action, and they’re still pressuring President-elect Joe Biden to use executive power to revamp everything from the economy to climate change policy.

Biden has been cool toward taking broad unilateral measures. A self-proclaimed institutionalist, he has stressed his desire to find common ground with Republicans and, in doing so, agitated members of his own party.

After watching in horror at the ways President Donald Trump wielded the power of the executive, progressives say they are eager for Biden to do the same. Democratic lawmakers and outside groups are readying lists of executive actions they want Biden to enact early in his presidency.

On Capitol Hill, they’re making the case that the incoming president cannot afford to wait and see if Sen. Mitch McConnell and fellow Republicans will be amenable to compromise on items that require 60 votes for passage, or if the votes are there to reform the legislative filibuster. A 50-50 Senate with Vice-President-elect Kamala Harris as the tie-breaker will still present major hurdles for big-ticket items, even with some new procedural options at Democrats’ fingertips.

Sen. Brian Schatz (D-Hawaii) said he’s “pushing” the incoming administration “to do as much as possible in the executive order space,” arguing that utilizing that power “creates a little bit of leverage” for legislating.

“If the clouds part and we have opportunities to do real legislating, then great, but if they don't, then at least the Biden administration doesn't waste 18 months, you know, testing the good faith of Republicans to do a bill,” Schatz said of executive orders, calling the power a “beautiful” thing.

The push for sweeping use of executive action has created a strange dynamic within the Democratic Party. Lawmakers are increasingly eager to cede their legislative power to Biden — but Biden says he doesn’t want it.

In a sit-down interview with columnists before the holidays, the incoming president threw cold water on one of the biggest potential executive order items. “It’s arguable,” Biden said, that he would have the power to “forgive up to $50,000 in student debt.”

At a press conference on Friday, David Kamin, Biden’s economic adviser, said that the president-elect would direct the Department of Education “to extend the existing pause on student loan payments” and support congressional action to cancel federal student loan debt. But Kamin put the amount they supported canceling at $10,000 per person and didn’t address if Biden would take executive action should Congress fail to act.

Freshman Rep. Mondaire Jones (D-N.Y.) said Biden’s comments to columnists questioning his legal powers were “unfortunate” and “really miss the moment.”

“People like Chuck Schumer, Elizabeth Warren and myself know the opposite to be true — know it to be true that he does have the authority,” said Jones. “It is why more people like myself, more millennials, need to be represented in positions of power in our federal government, because we understand the urgency of the student debt crisis, which has crippled millions of young people.”

In addition to the pressure progressives are putting on Biden to immediately forgive student loan debt, they’re advocating for him to direct his attorney general to review the process for removing or reclassifying marijuana on the list of “scheduled substances,” and to issue a national emergency declaration for the climate change crisis. The former presents potentially tricky legal questions. The latter could require a subsequent order detailing the legal provisions under which Biden and others in his administration have the power to act.

Democrats also want Biden to use his presidential authority to effectively halt federal executions and commute the sentences of those on federal death row; and to empower the Federal Reserve and Treasury Department to carry out massive economic and infrastructure development projects such as state-of-the-art schools and 6G networks.

Over the last few months, the coalition pushing for aggressive executive actions has gained some powerful allies, including the top Senate Democrat, Schumer, who is poised to become majority leader but could face a left-wing challenge when he runs for reelection in 2022.

Schumer previously urged Biden to cancel student loan debt through an executive order. And Sen. Sheldon Whitehouse (D-R.I.), said Senate Democrats are organizing a process to have their “recommendations for early executive order action considered” by the incoming administration.

Schumer “has set up pathways” for Democrats to present our recommendations to the Biden administration “either directly coordinated through his office or coordinated through the relevant committees of jurisdiction,” said Whitehouse. Schumer’s office and the committees are helping to clarify, simplify and eliminate redundant executive order requests, he added. Schumer’s office did not respond to requests for comment.

Whitehouse is pushing for at least six policy areas he wants Biden to tackle with executive actions. One he has proposed as an “opening day, mother of all executive orders,” which includes clearing the decks of Trump appointees across agencies if some refuse to leave and rescinding agencies’ pleadings in legal cases across the country.

Trump’s sweeping executive orders “[leave] a very open field to make corrections” that are “in parallel with where the Trump administration sought out executive authority,” said Whitehouse. “Biden should fully take advantage of that because that was the Trump precedent.”

During the 2020 campaign, Biden supported several policies that the left wants him to now achieve unilaterally, such as forgiving student loan debt and ending the death penalty. But Biden has not endorsed fulfilling them through executive orders or other similar actions.

Biden spokesperson TJ Ducklo said the incoming administration will immediately “act through legislation and use all levers of government to begin delivering results for working families.”

Progressives argue that the failure to quickly help Americans cope with the coronavirus pandemic and related economic downturn through executive actions could result in Democrats being wiped out in the 2022 midterms.

“By my interpretation of the authority of executive action, I don't think that there are very many limits and again, there's so much hurt that can be reversed,” said Rep. Ayanna Pressley (D-Mass.), who has led her colleagues in pressing Biden to halt executions of federal prisoners on death row and resentence them.

The left is still burned by what it saw as former President Barack Obama’s failure to adequately respond to the Great Recession — and his futile attempts to strike bargains with Republicans — which was followed by Democrats losing the House in 2010.

New Consensus, a left-wing think tank whose leaders include Rep. Alexandria Ocasio-Cortez’s former chief-of-staff, said it has been in talks with the Biden transition team about its plan to empower the Federal Reserve and Treasury Department to make trillions of dollars in loans to small businesses and emerging industries.

“They seem to be really intrigued by some of the ideas,” said Robert Hockett, a fellow at New Consensus and former adviser to Sen. Bernie Sanders’ 2020 campaign, of Biden’s transition team.

Rep. Pramila Jayapal (D-Wash.), chair of the Congressional Progressive Caucus, said caucus members have been talking for months about pushing Biden on unilateral action and working with outside progressive groups on what he can do. Left-wing organizations gave presentations to the CPC lawmakers on the topic about a month-and-a-half ago. Jayapal said the caucus is preparing to release a list of executive actions that it wants Biden to prioritize.

“People have been suffering for so long, and they really need to see that this election made a big difference and that Joe Biden is fighting for working people,” she said. “Sometimes we’re going to be in front of the Biden administration. Sometimes we’re going to be right by their sides doing everything we can. And sometimes we’re going to be pushing hard.”

Progressive Democrats in Congress expect Biden to quickly sign executive orders reversing many of Trump’s own unilateral actions. For instance, Biden has promised to rejoin the Paris climate agreement, ban fossil fuel production on federal lands, restore Deferred Action for Childhood Arrivals and end the so-called Muslim ban. But Biden and his allies have also stressed that they want to work through Congress.

"Not since LBJ has there been an incoming president who had as much respect for the Senate,” said Sen. Chris Coons (D-Del.), a top Biden ally, noting the “steady loss of the Senate’s relevance and power” over the decades. “If there is ever a moment in our lifetime where the Senate should take the outstretched hand of the incoming administration and work together, that time is now … we would only have ourselves to blame if Biden has to resort to executive action."

Sen. Chris Murphy (D-Conn.) said no one should underestimate Biden’s ability to find legislative pathways on difficult policy. “People that say he can't pull a rabbit out of the hat and negotiate [a] compromise with Mitch McConnell probably should remember how most prognostications about Joe Biden's political prospects have been wrong consistently throughout the last few years,” he said.

But Biden shouldn’t wait for Congress, he added. Murphy pointed to gun control policy as a place where executive action could work in the absence of legislative agreement. Biden may not be able to sign an order instituting universal background checks, said the senator, but he “can absolutely dramatically expand the number of gun sellers that are required to do background checks.”

Across the board, Murphy said, “if he's got the legitimate executive authority, then he should use that authority.”

Alice Miranda Ollstein contributed to this report.