We’re going to hear and partake in a lot of talk about “policies” as the 2020 Democratic primary boils down to a contest between the “left-wing” “socialist” Bernie Sanders and the “moderate” Joe Biden.
As I’ve written before, “policy” is a word that gets thrown around a lot in political discussions even though we don’t necessarily understand what it actually means or refers to:
Expanding access to health insurance, and setting minimum coverage standards, is policy. Building and rebuilding public infrastructure is policy. Raising the minimum wage is policy. Establishing workplace safety standards is policy. Setting immigration enforcement priorities is policy. Proscribing discrimination in the public sphere is policy. Incoherent slogans about “freedom” and “limited government” and “personal responsibility” are not policy. Masturbating to the words “capitalism,” “free markets” and “Job Creators” is not policy. Whingeing about "political correctness" and the "liberal media" is not policy. And being annoyed by liberals (be they real or imaginary) is not policy; in fact, it has nothing to do with policy.
We all know, or should know, the difference between campaign slogans (i.e., political rhetoric) and policy proposals. That’s not what I’m here to talk about today; nor am I here to evaluate or compare the campaign slogans or policy proposals of Biden, Sanders, or anyone else. What I want to do today is just give everyone something to think about moving forward, for those who have already voted in the primaries and those who have yet to do so, for those whose preferred candidate is still in the race and not.
Policy is, of course, the most important topic to consider when choosing a candidate for any public office. Specifically, what policies does this candidate propose to enact if (s)he is elected? What policies would this candidate prefer to see enacted? But there’s an important distinction that is often overlooked when we have these conversations with ourselves and with each other, which is: are we talking about administrative policy, or legislative policy?
During the Obama administration, the GOP and its allies wore out the word “regulation(s)” to the point where it became almost meaningless; more specifically, to the point where regulation became indistinguishable from law. However, law and regulation are two very different things, and the importance of understanding the distinction cannot be overstated. As an initial matter, laws apply to everyone, whereas regulations only apply to regulated entities, such as banks and other businesses/industries, as well as governmental agencies. Congress can — and often does — delegate regulatory (i.e., rulemaking, administrative and enforcement) authority to executive-branch agencies, the Affordable Care Act (HHS) being a prime and prominent example.*
[* — Remember when fans of the GOP tried to blame the 2008 financial crisis on Congress (i.e., on Democrats) but couldn’t identify a single piece of legislation passed in 2007 or 2008 that had caused or even contributed to the crisis? That’s because it’s the various federal administrative agencies within the Commerce and Treasury Departments — the SEC, OCC, OTS, FDIC, &c. — not Congress, that regulates and oversees the banks.]
Constitutionally, the President has authority to set administrative policy, which means he can direct Cabinet Secretaries and Cabinet-level departments (e.g., Defense, Commerce, Labor, Interior, HHS, Education) as to how to do their jobs, how to run the subsidiary agencies (e.g., the IRS, EEOC, BLM, NASA, CDC, &c.), and how to implement federal law where Congress has authorized the Secretary to do so. The President can, for example, set enforcement priorities under the Immigration and Nationality Act, or direct the Labor Secretary to have the EEOC interpret Title VII of the Civil Rights Act to cover (or not cover) employment discrimination on the basis of sexual orientation or gender identity.
What the President can’t do is legislate policy into existence, or direct any federal agency to do anything that Congress has not authorized it to do. The President can ask Congress for things, and even send full written bills to Congress for its consideration, but (s)he can’t tell Congress what to do or not do. Of course the President can veto legislation, subject to override, but can’t use his veto power to set or change policy (remember, the line-item veto was ruled unconstitutional on the basis that the POTUS cannot sign a bill into law that Congress did not pass).
OK, so what’s the point of all this? The elephant in the room, obviously, is that neither Bernie Sanders nor Elizabeth Warren nor any other President can make Medicare For All (or anything like it) happen on his/her own; (s)he would have to ask Congress to do it. But there’s another side to that coin: If Congress goes ahead and creates something like Medicare For All, or a public insurance option under the ACA, would the POTUS sign it, or veto it? If he signs it, how would he direct HHS to implement it?
Plenty of people have asked the question: Does anyone really believe that Congress would enact Medicare For All if Sanders (or Warren) became President and asked/advocated for it? But again, there’s another side to that coin: Does anyone really believe that if Congress went ahead and enacted Medicare For All, Biden (or any other Democrat) would veto it? Or sabotage it administratively, as Trump’s HHS has done with the ACA (and Obama’s DOJ was accused of doing with the INA)?
All I’m saying is: However you feel about the remaining candidates, and their respective “policies” (or lack thereof), before you panic or wring your hands over not getting the “policies” you want (or getting “policies” you don’t want) from whoever wins, always keep in mind and stay focused on what the President’s job, role and function actually is; what the President can actually achieve policy-wise through administrative action, rulemaking and enforcement (i.e., regulation), as opposed to what has to be done and can only be done by Congress (i.e., law). Don’t ignore the latter, just focus on the former. Put another way, understand and recognize the difference between what a President can and might do him/herself, what (s)he can ask Congress to do, and what (s)he’s likely to do with whatever Congress hands him/her and what’s already on the books.
Then, consider the alternative...