Ideally, if Democrats do their job up to and on Jan. 5, we will win both of Georgia’s Senate seats, and secure a bare majority in both chambers of Congress. Coupled with President-elect Joe Biden, this small trifecta means, at the very least, that our government can still function. This is a big deal, since certain Republican senators have indicated that they plan on indefinitely blocking every single one of Biden’s Cabinet nominees. Biden shouldn’t waste any precious time trying to get the Republican Party to do the right thing, such as respecting the will of the voters. If he wants to get anything done, he is going to have to do it alone.
Hopefully, Democrats will take both Senate seats in Georgia, as this would be the easiest path for governance. However, it isn’t at all necessary for Biden to get things done. There is a critical loophole that would prevent Senate Majority Leader Mitch McConnell from blocking votes—as long as Democrats are willing to use it. There's also plenty of things that Biden can make happen, and not a single Republican is required to participate. Extremists rule the opposition, so we must continue to rethink the old adage that bipartisanship is a good thing; the other side—either through sabotage or cowardice—is hellbent on undermining democracy and going all in with the politics of destruction.
But what if the Democrats don’t win both Senate seats in Georgia? McConnell retains control of his chamber, and blocks all legislation and all nominees, leading to at least two years of solid obstruction. Game over, right?
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The Senate Majority Leader is a made-up position. It’s not in the Constitution, or even in the Senate rules: The power of the Majority Leader is based solely on Senate norms and traditions. Since Republicans have decided those no longer concern them, then Democrats aren’t bound by them, either, which presents a serious opportunity for the Biden administration. Article I, Section 3 of the Constitution clearly states that the vice president shall be “President of the Senate,” but have no vote unless the votes are equally divided.
When the vice president is not presiding over the Senate, the Senate will choose a president pro tempore to preside in her absence. Tradition has junior members of the majority party presiding, but the president of the Senate can take control anytime. If McConnell refuses to bring up legislation, or refuses to hold hearings or votes on Cabinet or judicial nominees, then Vice President Kamala Harris has the legal authority to take control. She would then decide what comes up for a vote.
This would come in handy in a situation where, say, McConnell decides to go with the Ted Cruz plan to block all of Biden’s Cabinet nominees. While the overwhelming majority of Republicans would back McConnell, sadly, not all of them would. A few, like Utah’s Mitt Romney, know that not having qualified experts in top positions during a pandemic or a foreign policy crisis is dangerous. It isn't typically in the Democrats' nature to play this kind of hardball, but we've got a nation to repair—a nation we all know the GOP is now hellbent on destroying.
As far as appointments go, Biden has a lot of options, as helpfully outlined by Washington Monthly. Obama paved the way for the appointment of nearly unlimited policy czars, and Biden also has the ability to appoint "acting" positions for more than 1,200 agency positions. (Trump managed to do it for other positions, as well.) Perhaps most interestingly, Biden can use the adjournment clause, in Article II, Section 3 of the Constitution, to force numerous recess appointments. This technique would simply require the speaker of the House to propose a lengthy adjournment, of which the Senate can either accept or disagree. However, if the Senate disagrees, the refusal would constitute a "disagreement"—which means Biden gets to decide. This technique has never been used, but again, if the GOP is going to obstruct everything they can, Democrats better be ready to fight back—hard.
As far as legislation goes, if we lose the Senate, and can’t get one Republican to do the right thing, there are plenty of things Biden can do by himself without Congress. The one thing Donald Trump did well was show us all how much a president can get done without Congress.
The executive branch carries a lot of unilateral power, which presidents have been increasingly less hesitant to use: Think executive orders, federal regulations, and national security decision directives. Importantly, Biden has already promised on his first day to hit the ground running—without waiting for Congress. Here’s a sampling of actions he might take.
COVID-19: Biden has promised to fight the COVID-19 pandemic by immediately appointing a “national supply chain commander” and establishing a “pandemic testing board” upon assuming office. It is very likely he won’t be picking his children for any of those roles. Incoming White House chief of staff Ron Klain coordinated the federal government’s response to the 2014 Ebola outbreak, which is good, since Trump was keen on pushing out experts. Biden will bring the experts back, and put scientists back in charge, instead of political hacks. This is critical, since the CDC and FDA have suffered so much under Trump. This new leadership will standardize guidance and base it on facts. Biden could and should reinstate the pandemic response team that Trump dissolved, which would improve the federal coordination in the fight against COVID-19. With new leadership, Biden could work with the CDC, and even the military, to develop a national distribution network for the vaccines. He could use the powers of the Defense Production Act to manufacture supplies and equipment—which Trump didn’t want to do.
Voter Suppression: Bill Barr’s DOJ was not at all interested in fighting voter suppression. You can bet that whomever Biden picks won’t have that issue. However, there is one thing that Biden can do immediately that would be a huge victory against the GOP’s war on voting. The entire point of Republican voter ID laws is to make voting inaccessible to thousands of poor voters. That’s because voters of color are the least likely to have a driver’s license, given that they are more likely to live in urban areas which have adequate public transportation, and unable to afford a car. Furthermore, tracking down the documentation to obtain a driver's license can be time-consuming and expensive. Other valid IDs, such as passports, are even harder to get. However, giving people the option to add a photo to their Social Security card, which most people have anyway, could ensure that they’re not barred from voting in the red states with strict voter ID requirements where concealed carry licenses are fine, but student IDs typically are not accepted. This is an easy directive with no congressional approval requirement.
Paris Climate Accord: Biden already stated he will bring the U.S. back into the Accord as one of the first orders of business. This pact is an agreement among nations to reduce emissions. Biden does not need the Senate to do so, because the Accord is an executive agreement; Biden just needs to send a letter to the United Nations stating his intent to rejoin. Furthermore, Biden can reverse the more than 125 environmental rules that Donald Trump overturned by fiat, such as rules on energy efficiency, oil exploration, and use of biofuels. There are other accords and agreements that Biden can rejoin on his own if he chooses to, but this is arguably the most important one.
Postal Banking System: North Dakota has a very popular public bank, but nowhere else in the U.S. does a government-run bank compete with private banking. Fortunately, President-elect Biden and Vermont Sen. Bernie Sanders convened a task force to look into the creation of a public banking option, set up through the U.S. Postal Service and the Federal Reserve, for low-income and middle-income families. Biden can set parts of such a system up without any legislation, such as USPS launching their own refillable, prepaid debit cards.
Student Loans: Senate Minority Leader Chuck Schumer told reporters that “President Biden can undo this debt—can forgive $50,000 of (student) debt—the first day he becomes president. You don't need Congress. All you need is the flick of a pen.” Over 90% of the student debt in this nation is owed to the federal government. Biden can either forgive or eliminate the interest. Student loan debt is the only debt that you can’t discharge through bankruptcy, thanks to a 2005 law. Educational debt is a massive burden to millions of people who are currently paying at least 10% of their income every month, and will for at least a decade. Forgiving it can provide much-needed relief during the COVID-19 pandemic.
Overtime: The Trump Administration's Department of Labor allows companies to screw workers out of overtime, simply by classifying workers as managers. Dollar General is the worst offender, but there are plenty of others. Most likely, the workers you see helping you in these stores were classified as managers just so they can be forced to work extra hours without overtime pay. One ex-CEO of Dollar General faced no less than four class-action lawsuits over wage theft. That CEO became very rich exploiting this loophole. He is now an incumbent senator fighting to save his seat in Georgia—Mr. David Perdue himself.
Immigration: Biden still needs to work with Congress on pathways to citizenship, but he can do so much in this area without the Senate. This is an area where Trump was at his cruelest. Immigration in this nation has been virtually shut down, and refugees were limited to only 15,000 per year. Biden has already promised to raise that by over eight times the current amount. He has also promised to set up a task force to reunite those missing children lost under the Trump administration, and end the child-caging that Trump will forever be remembered for. Biden also vowed there would be no more Dreamer deportations, Muslim bans, workplace raids, or child separations.
Affordable Care Act: Trump did everything he could to sabotage Obama’s signature achievement, but Biden can reverse much of the damage on his own. He can extend the enrollment period, increase advertisement spending, and repeal the IRS rule that workers must accept a health care plan from their employer, no matter how bad, if one is offered. Biden can also help states create their own plans—something Trump was not at all interested in—and lower prescription drug prices.
Cannabis: A Florida doctor prescribed opium to a friend of mine, who suffered tremendously in the hospital before she died. Cannabis would have been a better drug, but that was not a possibility. Such is the insanity of keeping cannabis a Schedule 1 drug, which means it is classified alongside heroin. There is some disagreement between legal scholars, but many, such as a professor Sam Kamin of the University of Denver’s Sturm College of Law, assert that the president-elect can unilaterally reschedule cannabis through executive powers—he just can’t deschedule it entirely. Rescheduling would make things easier for marijuana businesses, so for example, they could at least deduct business expenses with the IRS. While Biden can’t deschedule cannabis—making it legal—on his own, he could order his Health and Human Services to run tests on the medical value of cannabis, which would help with descheduling down the road. He could also order the DOJ to not focus on prosecuting cannabis-related offenses.
Drug Prices: Two words: drug patents. The feds issue drug patents to companies, giving them exclusive rights to sell drugs for several years, at any price, before allowing generic versions to be manufactured. Biden has the option of “march-in rights,” meaning that if a drug is being sold at an outrageous price point—which is more common than it should be—the government can seize the patent and issue it to generic manufacturers, in exchange for those manufacturers selling that drug at a reasonable rate. Although this would help the elderly on fixed incomes the most, it would also benefit everyone. Republicans would scream, but who the hell cares?
There’s plenty more, such as restoring government unions, breaking up monopolies, utilizing municipal lending instruments for better access to loans, and enacting Wall Street reform—just to name a few. The point is that Joe Biden can do a lot on his own, and if Georgia’s runoff goes sideways, he’d better get ready to do ‘em.
Republicans will complain about everything on this list, and whine that Biden is doing things without them. So what? The American people no longer care what the excuses are for not getting things done. Trump went so far as to redirect benchmarked funding toward his own projects, and blatantly violate established law—such as the Hatch Act. He even disregarded court rulings, as with the Census and DACA. When Congress refused to give him the people he wanted for his Cabinet, he made them “acting in the role of” and dared somebody to do something about it.
Biden doesn’t have to go as far as breaking the law, but breaking from norms and traditions to get his agenda through? You’d better believe it.
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