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A President Biden has several tools available to him to circumvent McConnell’s Senate and still appoint the Cabinet secretaries he needs.
The Revolving Door Project, a Prospect partner, scrutinizes the executive branch and presidential power. Follow them at therevolvingdoorproject.org.
Merrick Garland (verb): To prevent an eminently qualified potential appointee from even being considered, for no reason other than partisan politics and a display of political power
If current trend lines hold, Joe Biden is on track to not only become the next president of the United States. In part due to population growth, he will have won more votes than any president in American history—more than Ronald Reagan, more than Bill Clinton, more than even Barack Obama, in whose shadow Biden seems to live.
In short, the people want Biden to wield the full force and power of the presidency. Yet early reports indicate that Biden’s transition team is already readying its white flag of surrender due to opposition by one profoundly unpopular man—probable Senate Majority Leader Mitch McConnell.
The Biden team’s cowardice results, they inform us, from simple mathematics. If McConnell controls the votes needed to confirm Biden’s would-be Cabinet, there is no doubt in anyone’s mind that McConnell will obstruct, stonewall, and sabotage any effort to build a functioning government. He will do to Biden’s nominees, in other words, what he did to Merrick Garland. Just as in Garland’s case, he will do so simply because he can.
Instead of appointing bold personnel committed to Biden’s “Build Back Better” agenda, the transition team is leaking that they’re resigned to putting forward corporate lobbyists and bland centrists, in the desperate hope that this will appease McConnell into doing his damn job. This argument is also more than a little convenient for the corporate lobbyists and bland centrists desperate for some good reason why they should be considered for jobs. In fact, most of the names floated in Axios’s coverage of “fallback” candidates were already seen as leading choices for various jobs: Lael Brainard at Treasury and Tony Blinken at State, for example. In this sense, the Biden team is claiming their hands are tied in service to putting forward the nominees they want anyway.
It’s important to recognize that the idea of hopelessness around a Biden Cabinet is nonsense. Biden has several tools available to him to circumvent McConnell’s Senate and still appoint the Cabinet secretaries he needs. And to have any hope of Democratic victory in 2022 and 2024, Biden must not only build a functional, Rooseveltian government, but he must take public credit for it—and publicly jeer those who would stand in his way.
Biden has at least two paths to building a Cabinet without running through the Senate. First, he can aggressively use the Vacancies Act, which allows presidents to temporarily fill the leadership of an executive agency while waiting for a permanent nominee’s confirmation. Biden can either direct someone sitting in a different Senate-confirmed job to fill the duties of a Cabinet secretary, or pick a senior staffer at the agency and temporarily make them the boss.
You know all of those Trump officials with the word “acting” in their job titles? They got those acting jobs thanks to the Vacancies Act. In other words, Republicans have cheered aggressive use of this law for four years, even when they controlled the chamber needed for full confirmation of these appointees. They are in no position to complain about Biden using it, and when they inevitably complain anyway, they should immediately be discounted as the hypocrites they are.
Democratic commissioners of independent agencies are Senate-confirmed for multiyear terms, meaning they stand ready to fill the duties of the Cabinet as soon as Biden is sworn in. For example, Federal Trade Commissioner and Sen. Elizabeth Warren ally Rohit Chopra would make an incredible secretary of commerce regardless, but under these conditions, he’d be one of the best qualified designees available for the job.
Who better to steer the ship of government through turbulent times than the dedicated civil servants who survived the Trump era? One of Biden’s first priorities as president must be a thorough review of the executive branch corruption and self-dealing that occurred under Trump. These civil servants know best what happened in their respective agencies, making them ideal under any circumstances to take the reins of the department.
Biden’s second option for circumventing McConnell is to make appointments in recess. Here, according to legal expert Sy Damle, Biden would need the Speaker of the House to set up a disagreement with McConnell over adjourning, which President Biden can then settle using the Presidential Adjournment Clause in the Constitution. While Congress stands in recess, the president can make temporary appointments which last until the end of the next congressional session.
Both options would be novel strategies in scale, even as both are either common in smaller doses or a nonideological extrapolation from straightforward text. Many pundits would likely scoff that Biden is playing “constitutional hardball” and violating sacrosanct norms of government. In doing so, they would be defending Mitch McConnell on government norms! Anyone so ignorant of the ways performative nonpartisanship tilts the media rightward simply should not be listened to in 2021.
To have any hope of Democratic victory in 2022 and 2024, Biden must not only build a functional, Rooseveltian government, but he must take public credit for it.
The truth is that so long as Biden frets about norms, he will always lose to McConnell and the Republican Party. McConnell is physically incapable of acting in good faith—a fact some Senate centrists are reportedly (thankfully) waking up to at last.
Biden himself may be an institutionalist, but he is first and foremost the future president and current leader of the Democratic Party. His duty as president is to shepherd the country though a deadly pandemic and an economic calamity comparable only to the Great Depression. His duty as Democratic leader is to keep his party from losing power in 2022, and keep himself or his successor from losing the presidency in 2024.
There is no way to accomplish either of these tasks while kowtowing to Mitch McConnell. It is an apocalyptic delusion to think McConnell will be reasonable if only Biden nominates centrist corporatists to his Cabinet—that was the same logic behind nominating Merrick Garland, and his name is now a verb (see above). If Biden worries about passing nominees through the Senate, God help us for any hope of passing legislation, no matter how moderate and feeble. If, by 2024, the Democratic Party’s only argument for re-election is “well, we tried to make a few tweaks to Obamacare, but darn it, McConnell behaved in exactly the way everyone already knew he would,” this country is doomed to fascism.
Biden and the nation’s only hope rests in aggressively using the executive branch to actively improve people’s lives, and then to take very public credit for it. This is, in fact, the strategy for which the Prospect and the Revolving Door Project have spent the last year preparing. I previously identified 277 policies Biden could start enacting via executive power from the moment he is sworn in. The Prospect’s Day One Agenda includes policies that would transform American life as we know it—forgiving almost all student debt, busting corporate monopolies, creating a public banking system, decriminalizing cannabis nationwide, and so much more.
Biden must enact these policies, and then take extremely public credit for them. One of Donald Trump’s only smart decisions this year was ensuring his name and signature were on that single $1,200 stimulus check we all received months ago. When Biden uses the government to actually improve average people’s lives—and he can, immediately, with just a few pen strokes—he needs people to know that he did, and that Mitch McConnell is the only thing keeping him from doing even more. This is the only pathway to Democratic victory in the years ahead.
If Biden worries about passing nominees through the Senate, God help us for any hope of passing legislation, no matter how moderate and feeble.
Don’t think that McConnell’s obstructionism will not cost him. When Newt Gingrich shut down the government in 1995, the public rightly blamed him. Republicans lost House seats in the next election cycle, and Bill Clinton romped to a second term. In 2019, when Trump caused another government shutdown, he too took the public blame for it. As it turns out, the people don’t like it when vainglorious Republicans sabotage the government for petty political reasons.
When he does so next year, McConnell will be sabotaging the government in the midst of high unemployment and a pandemic on track to claim at least 300,000 lives. It is not hard to convince the American people to hate him for that. Biden needs only to try. Likewise, if a rigged judicial system tries to get in the way of this or any other part of Biden’s Rooseveltian agenda, then the mandate to fix our judicial system will only grow. Biden and other Democrats should feed this actively—again, they simply need to try.
That may be the key theme of the years ahead. The president of the United States is not powerless. But Biden and his inner circle need to actually try to beat back disease, poverty, and a rising tide of fascism that preys on their learned helplessness.
