Victor Juhasz
This story is part of the Prospect’s series on how the next president can make progress without new legislation. Read all of our Day One Agenda articles here.
Last fall, when we were planning our coverage of the 2020 Election, I went ahead and looked at Article II in my pocket Constitution. Aside from control of the armed forces and the pardon power, treaty negotiations and appointments, and letting Congress know what’s going on, the main function of a president is to “take Care that the Laws be faithfully executed.”
It still amazes me that election coverage barely, if ever, mentions this. It never asks the candidates how they will implement existing law, and what they will do at their discretion. Most policy coverage in campaigns, to the extent there is any, involves the candidates’ sweeping packages of legislation, which have to fit through the eye of a needle known as Congress. Implementing existing law has a substantially greater chance of being fulfilled. But for some reason, “faithful execution” never gets a fraction of the level of coverage that legislative proposals do.
At the Prospect we set out to change that, with our package of articles released last fall called the Day One Agenda. We highlighted over 30 consequential actions that the next Democratic president could implement without needing a permission slip from Mitch McConnell or anyone else in Congress. As I wrote then:
Without signing a single new law, the next president can lower prescription drug prices, cancel student debt, break up the big banks, give everybody who wants one a bank account, counteract the dominance of monopoly power, protect farmers from price discrimination and unfair dealing, force divestment from fossil fuel projects, close a slew of tax loopholes, hold crooked CEOs accountable, mandate reductions of greenhouse gas emissions, allow the effective legalization of marijuana, make it easier for 800,000 workers to join a union, and much, much more.
The Day One Agenda, or the regulatory state if you prefer that name, explains why Donald Trump was such a consequential president, even though he really passed just one consequential law (the Trump tax cuts). Everything else was done through executive branch agencies, and yet he transformed America, on immigration and border policy, on climate and environmental law, on healthcare, on just about everything. Joe Biden can have just as much of an impact simply by using the laws on the books to reach his priorities and goals.
We’re not talking here only about “executive orders,” which have limited reach and dubious staying power. We’re talking about implementing laws duly passed by Congress in ways that match the job description of a president.
The election results make it likely (though not definitive if Democrats run the table in the Georgia Senate runoffs) that precisely the scenario that demands prioritizing executive action—a Democratic president with a hostile chamber of Congress—will come to pass. So now, all of a sudden, the traditional news media, which has studiously ignored the importance of a day one agenda until now, is catching up a year after the Prospect outlined what a president can do.
Here’s The New York Times deciding that executive action is suddenly news fit to print, highlighting all the things Biden can set in motion on day one. Its Sunday opinion page, also stressing executive action, managed to actually cite the Prospect. The Washington Post listed a “flurry” of executive actions being teed up, including rejoining the Paris Climate Agreement, canceling the withdrawal from the World Health Organization, repealing the travel ban on Muslim-majority nations, and restoring the DACA program that keeps Dreamers in the U.S. And there’s more coverage from CNN, New York Magazine, the Financial Times, Bloomberg, and HuffPost. Just on the Day One Agenda for climate alone, there are pieces from Vox, the New York Times, and the Los Angeles Times.
Victor Juhasz
At one level, it’s heartening that the rest of the media world has come around to see the importance of executive power. At another level, it’s infuriating that it’s taken this long. Campaign coverage featured almost none of these very real and obvious possibilities. And even now, the media are making no effort to go outside the relatively narrow box that the Biden transition is discussing, to talk about the even more wide-reaching potential for executive action, like seizing drug patents and issuing them to generic rivals that will lower costs, or creating a public option for simple banking, or establishing a public credit registry, or using bank regulatory policy to force reductions in size and complexity at the biggest financial institutions. We need to do more than reversing Trump’s abuses; we need to build back better, to coin a phrase.
This is stuff that the media could and should address during our political campaigns, but which instead it only surfaces after the fact, and then only under certain electoral circumstances. But the Day One Agenda was going to be necessary no matter what the election’s outcome. Laws that are passed can be interpreted in multiple ways, and it’s important for the public to know what those options are. When a president comes into office and claims that our dysfunctional political system ties their hands, a knowledgeable electorate can reject that if it understands that another way is possible. But that can only happen if the fourth estate isn’t chasing horse race and legislative ponies, and ignores the Day One Agenda.
Some political leaders understand that presidents have a lot of power even when they’re not signing bills into law. In a pre-election interview with Anand Giridharadas, Senate Minority Leader Chuck Schumer (D-NY) said that the first hundred days of a Biden administration should rival FDR’s, specifically through executive action: “Getting rid of student debt,” Schumer said, “I have a proposal with Elizabeth Warren that the first $50,000 of debt be vanquished, and we believe that Joe Biden can do that with the pen as opposed to legislation.” That would mirror the Day One Agenda proposal to cancel all publicly-held student debt, something the Education Department can do under “compromise and settlement” authority that derives from the Higher Education Act.
It’s gratifying that even high-ranking Democratic officials are thinking about the creative actions to make the presidency successful regardless of the makeup of Congress. This should have always been their mindset, but better late than never. Importantly, we’re not talking here only about “executive orders,” which have limited reach and dubious staying power. We’re talking about implementing laws duly passed by Congress in ways that match the job description of a president. The existing authority is simply more powerful than most people think.
At the time that we wrote the Day One Agenda, we did consider whether the Supreme Court would have the ability to reverse these actions and stymie the Day One Agenda. With the Court’s new 6-to-3 conservative majority, that concern is even more acute. But that can’t be a reason to avoid all executive action implementing already-passed laws. Besides, if you use these powers to give tangible benefits for the public, the Court, which at least is aware of public opinion, will have to think twice about whether to spend political capital taking them away.
Democrats, at long last, have to try to make progress—and the Day One Agenda gives them that potential. Over the next several weeks, we will be adding to our list of what the Biden administration can do without passing new laws. And we will keep tabs on the 277 executive actions that came out of the Biden-Sanders unity task force documents, and how many the incoming administration will actually carry out.
The Day One Agenda took on new importance because of the election, but in reality it was always important, because it was always in the realm of a president’s powers. It’s gratifying that the dominant media has begun to understand this, and they can follow our lead in examining the results.
