Tom Williams/CQ Roll Call via AP Images
Congressional Progressive Caucus chair Rep. Pramila Jayapal (D-WA) speaks with reporters at the House Democratic Caucus Issues Conference in Philadelphia, March 10, 2022.
It’s been two and a half years since the Prospect first unveiled a series of articles highlighting how the executive branch could make progress for the American people by taking actions based on existing laws, without further congressional approval. With the demise of the Build Back Better Act, the need to use executive action became more urgent, assuming the Democrats want to cobble together the best record to run on in November. The Biden administration has had these authorities since the inauguration, and still could use them at any time. Such actions are not a substitute for a legislative agenda but a complement.
As shown in our Executive Action Tracker, a couple dozen of the steps we outlined have led to at least some action taken. But last week, the Congressional Progressive Caucus increased the pressure on the president, with a fully realized set of 55 recommendations on a host of issues.
Several of the caucus’s recommendations align with past Prospect stories, like canceling student debt, extinguishing pharmaceutical patents to lower prices, strengthening overtime protections for salaried workers, and ramping up Temporary Protected Status for undocumented immigrants. The caucus included many additional ideas as well, and we’re going to add them to our tracker. That will put our monitoring of possible initiatives at 110 separate items.
Just having a large caucus within the party stressing the need to use all available tools to make progress, not just because it would benefit Democrats politically but because it’s the right thing to do for a party in power that believes in governing, is critical to getting things done. And it’s already borne fruit. On Monday, the Securities and Exchange Commission released a proposed rule to require public companies to release climate risk exposures that might have a material impact on their business, including their own greenhouse gas emissions. This was on the CPC list released last Thursday, and has been a focus of our coverage as well.
In another successful action, just last week, the National Labor Relations Board issued a complaint against two port trucking companies for violating federal labor law by misclassifying their contractors. Early this year, the Prospect broke the news that the NLRB had called for complaints of this type. One of the CPC recommendations highlights “addressing misclassification of low-wage workers.” A minimum staffing rule for skilled nursing facilities, which was announced by the president at the State of the Union address, is also on the list.
“We’re already seeing the beginnings of action on the executive front and we will continue to see some more,” said Rep. Pramila Jayapal (D-WA), chair of the Congressional Progressive Caucus, in an interview with the Prospect. She said that she expected an extension of the student loan payment pause before the May 2 deadline, and prior to any decision on cancellation, which will give the caucus more time to pressure the administration. She noted some success in rolling back a Trump-era Medicare privatization scheme known as “ACO REACH,” which, while altered, remains a potential threat to restricting care through the imposition of third-party for-profit middlemen.
She also thought that the administration would move forward on boosting overtime protections, which the CPC wants to be available to all workers making 55 percent of the median income or less, a figure that would open up overtime for those earning up to around $82,000 per year by 2026. In a Prospect article in January, sources close to the Department of Labor said a decision on new rules would be released this fall.
The focus on executive action could help shift some confusion around the powers and purpose of the presidency.
Another health care item where Jayapal expects progress involves the way eligibility for Affordable Care Act subsidies are derived for the insurance exchanges. Currently, it’s based on whether employer-sponsored health insurance is affordable (as a percentage of income) for the individual employee, but not whether it’s affordable for the employee to purchase it for their entire family. The CPC claims that fixing the “family glitch” will make 5.1 million more people eligible for ACA subsidies.
While cautioning that the CPC hasn’t given up on legislation—which is really in the hands of the Senate at this point—Jayapal stressed the need for a two-track process. “We’re getting as much as we can done through legislation, but there are also some places where you don’t have to have legislation,” she said. “There are still steps we can take to improve the status quo.”
Jayapal said last week that she had consulted White House staff about the recommendations and was planning to have a formal conversation with the president soon.
The focus on executive action could help shift some confusion around the powers and purpose of the presidency. The legislative branch makes the laws and the executive branch implements them. But our upside-down political media has transformed the president into a unilateral lawmaker who is personally responsible for Congress’s progress, while being powerless on the parts of the job where a president actually has authority.
A great case in point comes from a New York Times article last week, explaining that the Tennessee Valley Authority (TVA) is planning to use gas-powered electricity as a substitute for its retired coal plants, rather than shifting to renewable energy. The piece notes that the TVA is an “independent organization” with a board of directors dominated by appointees of President Trump, a climate skeptic and ally to fossil fuel companies.
But as Matt Bruenig notes, a president can fire TVA board members anytime they like. In fact, Trump did exactly this in 2020 in reaction to the board’s plan to outsource IT jobs. The board summarily shifted course, and a similar show of force from Biden would probably result in another course correction, this time by a board controlled by his appointees.
President Biden could take the same action on the U.S. Postal Service Board of Governors, firing the board members who continue to back Louis DeJoy, who recently decided to replace the aging fleet of postal vehicles with similarly inefficient gas-powered trucks made with non-union labor.
The larger point is that President Biden has a lot of authority, if he opts to use it, even with respect to so-called “independent” agencies whose board members he can hand-pick.
The CPC worked with its own members, other members of Congress like the Congressional Hispanic and Black Caucuses, and outside groups for several months on its agenda, which is focused on three goals: lowering costs and raising wages for working people, advancing racial and gender equity, and delivering on promises on key progressive priorities. The agenda was designed in the most inoffensive way possible, with ideas that the administration has talked about in public or that Biden himself promised on the campaign trail. Jayapal told me that over 90 percent of its 55 actions “fall into the category where we can have success,” inside the realm of political possibility.
The recommendations offer suggestions on long-promised but currently unrealized Democratic priorities, which have caused voters to lose faith in the party’s commitments. In an expansive section on immigration, the CPC asks for Temporary Protected Status to forestall deportation for individuals from 18 different countries, while ending the Remain in Mexico and Title 42 policies that have blocked asylum seekers from entry into the United States. They also ask for the removal of nonpriority cases from the immigration court backlog, and the termination of both private prison contracts (which were curtailed under President Obama for federal prison management but not for immigration detention and other services) and 287(g) agreements between federal immigration agents and local law enforcement to assist with immigration apprehension.
On policing, where the legislative effort has stalled, the report calls for public data and national standards on use-of-force incidents at police departments, an end to the current 1033 program of supplying local police with excess military equipment, clemency for those who complied with pandemic-era home confinement programs, and task forces on both prosecutorial discretion (to reduce over-criminalization) and white-collar crime (to point resources at broader forms of abuse from the corporate sector).
These ideas fall into the bucket of racial equity, one of the CPC’s three key priorities. “It’s about saying to communities of color that we are absolutely committed to those communities and making progress despite blocks in the Senate,” Jayapal said. A separate recommendation on implementing “Justice40” initiatives to ensure that 40 percent of climate and clean-energy investments go to disadvantaged communities has been prioritized by the White House, but the CPC wants to see the initiative implemented in recently passed legislation like the bipartisan infrastructure law.
Yet one critical equity idea, to reschedule marijuana off the list of controlled substances, was not included, because of resistance from Biden, Jayapal said. They also did not add other cannabis-related issues, like clemency for people with marijuana-related federal convictions and allowing research into marijuana’s medicinal use (to which Biden committed during his campaign, but which have gone unfulfilled).
“We wanted to look at things in the Venn diagram with the most impact and the most likely, what’s in that nexus,” Jayapal said.
Other pieces of the CPC agenda include federal standards for workplace safety in excessive heat and wind; more enforcement of wage theft; higher labor standards as a condition for federal dollars for infrastructure grants; updated regulations on particulate matter, ozone, carbon dioxide, mercury, coal ash, and especially methane emissions; a declaration of a national climate emergency and the setting of a national pollution cap; expansion of public manufacturing for both coronavirus vaccines and currently unaffordable prescription drugs; and a number of recommendations to use IRS rulemaking to improve the tax code, where the Biden administration has done little. That includes closing the carried interest loophole for hedge fund managers, which can be done by administrative rule.
Jayapal pointed out that the administration could take action in phases, depending upon whether Congress actually advances its priorities. Progressives have found it particularly frustrating to see the White House fail to use the threat of executive action as a spur to get legislative action moving. It could, for instance, vow to use its authority to seize patents of unaffordable prescription drugs if no reform measures pass. “That was part of our strategy,” Jayapal said. “The administration hasn’t used it as a tactic but we see it as a spur.”
It’s a big deal when anyone in Washington recognizes that presidential execution of the nation’s laws is not only within the bounds of possibility but a core function of the executive branch. Pushing Biden to action in this regard offers an opportunity to refocus the narrative of his presidency while actually helping people, a simultaneous policy and political victory.
