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.
President Obama inspired a lot of progressive disappointment for often failing to live up to his lofty rhetoric. But a strain of liberal thought defended him by insisting that presidents just weren’t that powerful. Political scientist Brendan Nyhan mocked the mindset of the uninitiated by calling it the Green Lantern Theory of the Presidency, after the DC Comics hero who possessed a ring that gave him near-total power, bound only by his imagination and will.
To Nyhan, partisans hold the misguided notion that a president “can achieve any political or policy objective if only he tries hard enough or uses the right tactics.” In reality, he argued, a strong legislature, a Supreme Court that can overturn laws, and the dynamics of a polarized age make policy accomplishments a difficult climb.
Theoretically speaking, this is all correct. A president has a thicket of checks and balances to maneuver through. But America has also been passing laws for over 232 years, and buried in the U.S. Code are the raw materials for fundamental change. It doesn’t take Green Lantern’s ring to unearth these possibilities, just a president willing to use the laws already passed to their fullest potential.
The Prospect has identified 30 meaningful executive actions, all derived from authority in specific statutes, which could be implemented on Day One by a new president. These would not be executive orders, much less abuses of authority, but strategic exercise of legitimate presidential power.
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. We have compiled a series of essays to explain precisely how, and under what authority, the next president can accomplish all this.
The need for a Day One agenda is particularly acute as we head into 2020. I keep sensing an undercurrent of despair when talking to liberal partisans about the election, a sigh that beating Trump is not enough but all that can be done. Yes, Democrats are only an even-money shot, at best, to flip the Senate. And yes, even if they succeed, Mitch “Grim Reaper” McConnell can obstruct the majority with the filibuster, and it would not be up to the next president, but the 50th senator ideologically, someone like Joe Manchin or Kyrsten Sinema, to agree to change the Senate rules to eliminate the 60-vote threshold for legislation. (There’s always budget reconciliation, but that limited path goes through the same conservaDems.)
But this reality does not have to inspire progressive anguish. Anyone telling you that a Democratic victory next November would merely signal four years of endless gridlock hasn’t thought about the possibilities laid out in this issue. And if you doubt the opportunity for strong executive action, let me direct your attention to Donald Trump.
MAKE NO MISTAKE: Trump is an autocrat, more than willing to break the law to realize his campaign promises. His invocation of inherent, extreme executive power, egged on chiefly by Attorney General William Barr, is in fact dangerous, as former Representative Brad Miller lays out for us later in this issue. Trump has asserted the right to ignore Congress’s oversight function, reinterpret laws based on his own preferences, hide information from lawmakers and the public, promise pardons before illegal actions take place, appoint acting heads of federal agencies without advice and consent from the Senate, and raise the specter of emergency to follow through on his campaign promises.
But in a significant number of cases, Trump’s pathway has sprung from a simple proposition: When Congress gives the executive branch authority, the president, you know, can actually use it.
Trump’s health and human services secretary is employing the federal Food, Drug, and Cosmetic Act of 1938 to test the importation of lower-cost prescription drugs from Canada. His education secretary canceled student debt automatically for 25,000 disabled veterans, implementing part of the Higher Education Opportunity Act of 2008. His agriculture secretary is resurfacing the work requirements already present in the Supplemental Nutrition Assistance Program statute, to prevent states from waiving them.
We’ve similarly seen Trump apply Section 232 of the Trade Expansion Act of 1962 to impose tariffs on imports he deems present a risk to national security. He also used the Commodity Credit Corporation, established in 1933, to send billions of dollars to farmers, to protect them from the blowback from his own tariffs.
Even his most tyrannical action, transferring billions from the Defense Department to build sections of a wall along the Mexican border, had the backing of a federal law: The National Emergencies Act of 1976 allows limited circumstances for presidents to move around money, despite Congress holding the purse strings. (It was such an emergency that he waited seven months to announce the second batch of funding shifts.)
Few of Trump’s ideas have been good policy, from a progressive perspective. Some, like the invocation of emergency powers, are a common tool of despots which never turns out well even when used by small-d democrats, from Lincoln’s suspension of habeas corpus to Roosevelt’s Japanese internment camps.
But Congress has routinely transferred its authority to the executive branch, putting arrow after arrow into a quiver that presidents now have in their arsenal. I despise radical “unitary executive” theories that misread the Constitution to presume an unassailable executive. But the president, by definition, carries out the laws. Trump has been using it for ill. An effective Democratic president could use it for good.
THE U.S. GOVERNMENT is one of the world’s largest purchasers of goods and services. This alone gives presidents widespread power to influence the economy by setting benchmarks for federal contractors to deliver high minimum wages, pay equity, safe workplaces, and shared prosperity. The government can even stop doing business with distasteful companies that rely on federal contracts, like the private-prison industry.
The government also manages giant swaths of public land, and can choose to open it up to development and fossil fuel production, or shut that down. And there are all sorts of statutory programs where presidents get to set the rules. When President Kennedy in 1962, after much prodding and delay, fulfilled a campaign promise to prohibit discrimination in federally aided housing, all it took was the proverbial “stroke of a pen.”
As Trump has repeatedly shown, in entire issue areas like foreign policy and immigration and global trade, the next president would have expansive authority, all granted by a plain reading of the Constitution, specific congressional statute, or the legislative branch’s studied deference. Who the next president chooses for the Federal Reserve Board will define the course of economic policy.
Presidents can make regulatory decisions like who qualifies for overtime pay. They can decide who serves as a worker’s employer, a critical determination for collective bargaining. They can choose whether corporations should still enjoy a “safe harbor” to facilitate stock buybacks that enrich investors at the expense of workers. They can’t bring forth Medicare for All, but they can use Section 1332 waivers from the Affordable Care Act to enable single-payer programs at the state level, and potentially use nearly $1 billion from the ACA’s Prevention and Public Health Fund to defray startup costs.
Once you start thinking about the possibilities, it’s hard to stop. Statutory language is sometimes clear and sometimes muddled, but regulatory discretion is almost always broad. What a president chooses to emphasize, and how much the letter of the law can be bent to their preferences, makes a huge difference.
Executive orders are a poor substitute for the authorities already existing in statutory language. It’s nice that Democratic primary candidates have been talking about executive orders, such as Kamala Harris’s proposed actions to mitigate gun violence, or Beto O’Rourke’s ideas on immigration. Some executive orders will make a huge difference in people’s lives, like Harris’s, Amy Klobuchar’s, and Cory Booker’s plans for clemency boards and mass commutations for low-level federal drug offenders. (Joe Biden’s plan along these lines, predictably, is far narrower.)
But there’s no substitute for authority from Congress. And in a surprising number of cases, presidents already have it. They don’t have to rummage for a few votes for financial reform; the architecture of existing law allows them to reform already. They don’t have to muster courage from swing-seat representatives to fight big corporations and tax the rich; the Federal Trade Commission and the IRS can get us there.
Public momentum can keep these rules in place, as advances for the American people tend to stick around. For instance, when you cancel publicly held student debt, as the education secretary has the authority to do under the “compromise and settlement” provision of the Higher Education Act, it’s difficult to un-cancel it. When you license out excessively priced prescription drugs to generic competitors, as the government can do under the Bayh-Dole Act of 1980 or Section 1498 of the federal code, it’ll be difficult to un-license it, and shoot drug prices back up again.
And aggressive executive action can spur legislative action. Congress doesn’t particularly like governing, but they hate being circumvented. Presidents making known their intentions to use existing statutes to solve problems can lead to lawmakers finally getting around to it themselves.
IT TOOK BARACK OBAMA roughly six years to make executive action a priority, after attempts to woo Republicans in Congress were fully exhausted. Finally, he famously said, “I’ve got a pen and I’ve got a phone.” It’s important that presidential hopefuls think about what they can do that Mitch McConnell cannot mess with right from the jump. But the substance of those actions matters as well. If you want to fully understand the differences between the candidates, you can ditch the uninformative debates and simply ask what executive actions they plan to take.
Making this reality will take an understanding of the administrative state that Democrats have paid scant attention to in the past. It will take nominating personnel throughout the executive branch with the imagination and creativity to scour the statutes and recognize opportunities to act. And most important, it will take a commitment to wielding power.
There’s a difference between control and power. Democrats like to take control; doing something useful while in control has been a different proposition. Barack Obama had to be browbeaten into protecting Dreamers with DACA, or showing his support for same-sex marriage. Too many Democrats still live in a perpetual defensive crouch, afraid to make policy for fear that somebody might not like it. They crave approval rather than progress.
This gets the structure of modern politics completely wrong. We have had successive wave elections practically every year since 2006, because voters are desperate for politicians to help them with their increasingly precarious economic situations, and politicians keep failing to come up with robust solutions. These wild electoral swings will not end without tangible steps to wield power. On certain issues, Trump has taken action, only on the very unpopular priorities of a xenophobic base. To restore a lasting political coalition, Democrats must take action of their own, to improve people’s lives. We need not fear executive power, as long as it promotes the general welfare.
This will certainly inspire criticism. Even Obama’s relatively incremental moves inspired conservative shouts about a socialist tyrant. Of course, these cries will come from the same corners that sat mute throughout the Trump presidency. (To be fair, all parties exhibit situational ethics when it comes to executive power.) Democrats must be willing to ignore these crocodile tears, and hit back with one simple sentiment: “I’m not disrupting the constitutional order; I’m carrying out duly passed laws. I’m doing my job.”
The Prospect has assembled a team of journalists and subject matter experts to identify numerous core areas where executive authority is available and warranted. We hope this can serve as a guide for how change can happen starting in 2021, regardless of who runs Congress. We also look at whether the Supreme Court can act to overturn these efforts through its own radical constitutional reinterpretations. While the threat of the Roberts Court nullifying good policy exists, that cannot become an excuse for inaction.
Finally, we asked every major Democratic presidential candidate—19 as of press time—whether they would commit to any or all of these 30 executive power actions. To their credit, some had already announced their intentions to do so. You will see these answers throughout this package, revealing the candidates’ commitment to act the way the founders envisioned presidents to act: taking care that the laws be faithfully executed.
