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Biden should use the expansive power of the executive branch to deliver benefits that make a clear and immediate difference in Americans’ lives.
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.
Joe Biden has won in 2020, but the shadow of the 2024 election already looms. We’re still stuck with a Republican Party shaped in Donald Trump’s image. Trump very well may run again in four years. But regardless, that party will eventually win power again, most likely with a candidate who shares Trump’s racism and authoritarianism, but not his stupidity and incompetence.
The only way to avoid that fate is for Democrats to use this time to win domination over government for an extended period, forcing the GOP to fundamentally change its political course and character to maintain its own national viability. This has happened before: Think of the GOP’s moderation following Roosevelt’s New Deal. If the Democrats wish to actually defeat Trumpism, instead of merely enjoying a temporary reprieve, they must do so again.
How to do this is deceptively simple in the sense that, when you state it bluntly, everyone knows it’s correct, but politicians still have a terrible time pulling it off. Basically: transform so many Americans’ lives for the better that you earn the durable loyalty of an overwhelming majority of voters. Democrats just need to help as many people as possible, as quickly as possible, and as transparently as possible.
What makes this tricky is it’s something you can do only after you’ve won power. For instance, seniors were an electoral irrelevance when Social Security was passed. The elderly became the voting powerhouse they are today largely as a result of Democrats passing that policy, and later Medicare. But back in the present, the election’s brutal down-ballot results already have Democrats fiercely debating messaging and branding, on the assumption that those factors will decide their fate in 2022.
The theory that electoral success is merely a matter of promising the right platform and committing to the right values went bust for Bernie Sanders’s insurgency in the primary, and then again for Biden in the general. Biden explicitly supported a $15-an-hour minimum wage in the debates, while Trump explicitly opposed it. Yet Trump went on to narrowly win Florida, even as the state’s voters also approved that very $15 minimum wage by a whopping 60 percent. Despite running on a platform that is wildly more popular on paper than Republicans’ obsessive commitment to tax cuts and deregulation for the wealthy, Biden won the battleground states by the skin of his teeth. It is simply far from obvious that “messaging” matters for elections.
What does seem to matter, for good or ill, is the parties’ already-established reputations. For most voters, beset as they are by demands on their time and attention, those reputations are built on straightforward heuristics: Have their circumstances and those of their community improved under the incumbent party? What has either party done for them previously?
Drawing on history, political science has a pretty good idea what specific characteristics policies should have to create that feedback of voter goodwill leading to large, durable majorities. Social Security and Medicare are the gold standard: benefits that are generous, that go to large swaths of the population, and that are designed and delivered in a straightforward way, so that voters can clearly see they’ve received the benefit, and from whom. As a demographic, seniors moved from an irrelevance to a major electoral force because those policies gave them a stake in governance and something to fight for, plus the resources and material freedom to engage with politics and to organize.
Unfortunately, even when they’ve held total power, Democrats have spent the last several decades deliberately avoiding policy designs that do this. They’ve approached big, ambitious public investment with trepidation; they’ve gravitated toward programs, such as Obamacare and endless tax credits, that are targeted, modest, delayed by years, and delivered through byzantine systems.
That American governance has been swinging crazily between Democratic and Republican control in recent decades, based largely on questions of identity and culture war, is not a natural inevitability. It’s because neither party has really done anything of substance for voters and Americans have been on a continuous glide path to ever greater inequality, stagnation, and insecurity since at least 1980. Voters keep desperately asking for change, and Democrats must finally, at long last, give it to them.
LET’S BEGIN WITH the admittedly optimistic assumption that Democrats win the two runoff elections in Georgia and take the Senate. There are several policy ideas that have all the positive-feedback characteristics of Social Security, but that also riff on existing aspects of Biden’s platform: a universal child allowance (effectively Social Security for every family with a member under 18), a multitrillion-dollar infrastructure investment, a Green New Deal focused on public works and job creation, or a policy that puts everyone under age 25 on Medicare, to name a few examples. Biden’s public option for health insurance should also fit the bill, assuming it’s sufficiently strong and generous and clearly branded as government-provided.
Voters keep desperately asking for change, and Democrats must finally, at long last, give it to them.
There’s also what Slate’s Jordan Weissmann termed “the three m’s”: a $15-an-hour minimum wage, Medicaid expansion, and marijuana legalization, which have all done very well in state referendums across the country. (Medicaid, because it’s fractured between federal and state-level administration, will have less oomph than a straightforward expansion of Medicare.) We also desperately need a multitrillion-dollar coronavirus relief package, combining cash aid to families, revenue support for small businesses, and aid for state and local governments. And while Democrats should also pass reforms such as HR1 to expand access to voting in general, Trump’s showing in the latest election demonstrates that simply increasing turnout is not enough; these new voters must be given concrete reasons to vote for Democrats—otherwise their loyalty is up for grabs.
Democrats would have to scrap the filibuster to get this all through the Senate—maybe adding Puerto Rico and Washington, D.C., as states as well—and somehow neuter the conservative supermajority on the Supreme Court to protect these policies after passage. But the basic idea here is to give to as many Americans as possible what Social Security gave to seniors: a stake in government, and resources to undergird a greater engagement in politics. And Democrats need to give it to them as fast as possible, certainly well before the next presidential election. A child allowance or a Medicare expansion could arguably be up and running before the 2022 midterms.
The far grimmer and more likely scenario, however, is that Republicans hold the Senate, and Mitch McConnell remains majority leader. In that case, the entire legislative agenda described above will be dead on arrival. Two years of inaction in the face of the coronavirus and grinding inequality will almost certainly bless the GOP with congressional gains in 2022, and Trump 2.0—or Trump himself—in the White House two years after that.
You can spin some scenarios in which productive compromise might be possible. A few Republican senators seem open to ambitious coronavirus responses. And while we must drastically reduce inequality over the long term, buying relief and job creation bills with more tax cuts for the wealthy might be worth it to shore up Democratic political prospects in the short term. Finally, Democrats may benefit from lucky timing: If the latest news on vaccines pans out, we could beat the coronavirus back by the 2022 midterms, which would likely cause a surge in the economy and redound to Democrats’ political benefit.
But we should not count on any of this. Luck can always change, and Republican leadership has no interest in doing anything that could improve Democratic fortunes with voters. In terms of unilateral actions to pursue progressive goals while McConnell rules the Senate, then, Biden and the Democrats will have one card to play. Fortunately, it’s a big one.
There are literally hundreds of instances where existing law gives the executive branch wide latitude to set regulatory decisions with real impact on Americans’ lives. The Prospect has already detailed much of this in its Day One Agenda. These would be clunkier solutions than legislative changes. But they are what we’d have to work with, and both the Obama and Trump White Houses pursued this strategy to an extent. A creative, aggressive, and ambitious Biden administration could push the envelope much further.
Not just any executive action will do, however. The Biden White House would need to focus on those changes that, again, could deliver broad, meaningful, and recognizable benefits as quickly as possible. There are a host of urgent issues, from climate change to National Labor Relations Board rulings, where major regulatory changes can be made, and they should probably be done. But those policies would not necessarily have the characteristics we’re looking for here.
There are literally hundreds of instances where existing law gives the executive branch wide latitude to set regulatory decisions with real impact on Americans’ lives.
One example under discussion that would fit this framework is canceling student debt. The executive branch can unilaterally forgive most, if not all, of that burden. Senate Minority Leader Chuck Schumer has endorsed the idea, and Biden himself says it’s a priority. Granted, the class politics of student debt forgiveness are complicated. But plenty of the benefits would flow to the working class, and the idea is broadly popular.
Another example: There are two different sections of law the executive branch could use to lower the cost of a drug and license it to generic manufacturers. Technically, these powers apply to any patented item, but spiraling drug costs are probably the biggest priority right now. Administrations have used these tools in the past for military needs, and once or twice even to browbeat pharmaceutical companies into lowering their prices. But regulators are generally squeamish, for fear of business lobby backlash or appearing radical. Biden’s administration should not feel any such hesitation.
We can keep going. Progressives and leftists often talk about how low-income Americans need an affordable, public option for banking services, and how the Postal Service could provide it. Turns out much of that project could be built without legislation, using the agency’s existing authority. On the subject of “the three m’s,” Biden’s administration could deschedule marijuana from the federal list of controlled substances, making life much easier on both medical researchers and the burgeoning marijuana industry. They could help hundreds of thousands of workers unionize, and beef up enforcement of worker safety laws already on the books. They could explore raising the federal poverty line, which would automatically expand existing welfare benefits to many more American families.
If Biden’s White House feels like getting really ambitious, law and public-policy professor Robert Hockett recently argued that many aspects of a major infrastructure bill and a Green New Deal could be accomplished with powers already at the disposal of the Treasury Department and the Federal Reserve. There’s even a section of law that says the executive branch can give anyone Medicare coverage if they’ve suffered a harmful “environmental exposure.” Since the whole country is at risk from a pandemic right now … Medicare for All by presidential decree, anyone?
By going all in on these sorts of executive actions, Biden could very well win Democrats enough political credit to flip the Senate back in 2022, resurrecting that sweeping legislative agenda for his second two years.
But make no mistake, none of this would be easy or surefire. A radically conservative Supreme Court could scuttle an ambitious regulatory agenda. Indeed, central parts of government’s regulatory bureaucracy are themselves designed to curtail action, and will have to be dealt with. Perhaps the biggest concrete hurdle to doing all this is that Biden would need ideologically committed and ambitious people running the relevant executive agencies—people who would, ostensibly, have to be confirmed by a hostile Republican Senate. But there are bureaucratic maneuvers to get around the need for Senate approval, particularly by promoting subordinates who did not require confirmation for their initial roles. Trump himself used these tactics routinely. While they are underhanded, they are also, at this point, necessary.
Which brings us to the final, most critical ingredient: the will to act. Would Biden and his White House actually have the stomach for this sort of bare-knuckle wielding of executive power? What we’ve seen from the president-elect himself is decidedly mixed. He alternately presents himself as a conciliatory and norm-following figure, and then as contemplating a presidency of FDR-style ambition. The teams Biden has set up to help his transition into the White House and plan his agency staffing combine meliorist centrists and full-throated progressives. And while those of us on the left fear Biden may follow in the Clinton and Obama mold, conservatives are of course already convinced he is a radical in sheep’s clothing.
Ironically, for both the future of the Democratic Party and the future of the country, let us hope the right-wingers are correct.
