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.
If somebody knew everything I could do with my job, let me know about it in advance, and informed me that they would be holding me accountable for my results, I probably wouldn’t be happy about it. I’d whine that I was being held to a higher standard than my counterparts, that the random complainer didn’t know the pressures I was under, and that they should content themselves with the knowledge that I’m doing the best I can.
Of course, I run a little magazine. I’m not preparing to become president of the United States. As Joe Biden surely knows, lots of scrutiny comes with the job of the most powerful person in the world, and rightly so. For which reason, it doesn’t look all that great when he snipes at those of us who’ve merely articulated the powers of the presidency and will judge Biden’s performance on whether he’s used those powers to deliver for all Americans.
Since we put out the Day One Agenda last September, and added to it during the transition period, other news outlets and commentators have followed with their own suggestions for how the Biden administration can make meaningful changes that will help people without having to wait for a permission slip from Mitch McConnell. At the Prospect, we have written over three dozen articles on the subject, and identified as many as 277 distinct actions that Biden can take by invoking his executive power, independent of what Congress may or may not do, all referenced in the Biden-Sanders unity task force document from this past summer.
Apparently, Biden isn’t thrilled about the trajectory of this discussion. On a call with civil rights leaders leaked to the press last week, Biden flashed some anger at the idea that he has the ability to make great strides for the American people even if Congress balks. “There’s some things that I’m going to be able to do by executive order,” Biden acknowledged, stating that he would “use it to undo every single damn thing this guy [Donald Trump] has done by executive authority.” But, he quickly added, “executive authority that my progressive friends talk about is way beyond the bounds … Not within the constitutional authority. I am not going to violate the Constitution.”
Biden gave just one example of how he’d exercise restraint, saying he would resist a suggestion that he “do away with assault weapons.” Said the president-elect, “No one has fought harder to get rid of assault weapons than me, me, but you can’t do it by executive order. We do that, next guy comes along and says, Well, guess what? By executive order, I guess everybody can have machine guns again. So we gotta be careful.”
Let’s take these objections in turn. First, those who’ve called for executive action, and certainly those of us here at the Prospect, aren’t calling on Biden to trample the Constitution. Absolutely nothing in the Day One Agenda would violate constitutional authority. In fact, the agenda adheres directly to the Constitution’s Article II powers. A president’s job function is, by and large, to take care that the laws are faithfully executed. Everything in our coverage refers to actual laws the president has the authority to implement. The only exceptions to that are in areas like foreign policy, where the president has additional, enumerated Article II powers.
Student debt cancellation, for example, is derived from the Higher Education Act of 1963. Lowering prescription drug prices comes from using provisions of the Bayh-Dole Act of 1980, or Section 1498 of the U.S. Code. Effectively legalizing marijuana is achieved through the Controlled Substances Act of 1970. Biden can alter the measurement of poverty because it’s an administrative function, and several laws tie federal benefits to that poverty calculation. Biden can shape federal procurement policy thanks to the 1974 establishment of a dedicated White House office for that purpose, and requiring contractors to pay living wages or proper benefits can meaningfully improve the lives of millions of workers.
I could go on, but you get the point. It is not tyranny or dictatorship to ask a president to do their job and implement laws already passed.
As for Biden’s example, that he’s been asked to “do away with assault weapons” by executive order, we certainly never published that, and I don’t know of any news outlet or advocacy group that has. However, under the Gun Control Act of 1968, Biden could restrict the importation of most assault weapons from abroad, unless they were deemed “particularly suitable for or readily adaptable to sporting purposes.” Two presidents, George H.W. Bush and Bill Clinton, have used this authority. A third has promised to do it, and to enforce the restriction more robustly. His name is Joe Biden.
It is not tyranny or dictatorship to ask a president to do their job and implement laws already passed.
What Biden seems to be saying is that if there’s a judgment call, he will choose not to implement laws, out of fealty to the Constitution. Yet the Supreme Court has argued that the Constitution compels chief executives to implement the laws. In 2007’s Massachusetts v. EPA, the Court—which at the time had a 5-4 conservative lean—ruled that the Clean Air Act required the Environmental Protection Agency to regulate carbon dioxide as an air pollutant. In other words, the law wasn’t optional but binding upon the executive branch. Interested parties like states could sue the EPA for failing to fulfill its constitutional duty.
Some of the Day One Agenda and the suggestions from other activist groups and publications definitely seek to aggressively use existing law to realize considerable goals. Yes, John Roberts and his even more conservative colleagues could rule that some actions overstep certain boundaries. But what exactly is the alternative to presidential initiative? A 50-50 Senate or one in the hands of Republicans will simply not bestow victory after victory upon Biden and the Democrats. Should a president decline to carry out his own priorities because the judiciary might overrule him and the opposite party might get upset about it? And even if our Republican judiciary struck down some of the president’s actions, wouldn’t it be clarifying politically to have the courts deny workers wages, patients lower drug prices, or student borrowers debt relief?
But Biden is not creating an administration with any visible intention to be creative about executive authority. The past several Cabinet selections, including Pete Buttigieg to run the Transportation Department, have not installed people with deep knowledge of the federal bureaucracy and the authorities buried in statutes that can assist them. Inexperience can be overcome, but if the executive branch is the only path forward for progress, you’d want people who know something about the agencies they will lead.
The Day One Agenda is more than anything a way for the public to understand the options available to a president. In the Obama administration, there was a tendency among his defenders to point to an obstructionist Congress and apologize for inaction. Some of that was legitimate—but presidents have power. They might want to bang the table and say, “That’s beyond my constitutional authority”; they might seethe at the unfairness of voters expecting them to do more than they say they can. So be it. Nobody said life as the leader of the free world was fair.
