President-elect Joe Biden looks like he will have to find a way to govern without a Democratic Senate to support him.
There is still a chance that Democrats will win a razor-thin Senate majority if they win both Georgia Senate runoffs on January 5. If they sweep the state, they’ll have 50 seats, and future Vice President Kamala Harris will be able to break the tie and make Chuck Schumer majority leader. But if Democrats lose one or both seats, they’ll be stuck with Senate Majority Leader Mitch McConnell. And even in a scenario with a slim Democratic majority, they’ll have to rely on moderates like West Virginia’s Joe Manchin, who’s refused to eliminate the filibuster.
That puts Biden at a disadvantage in his first months in office, relative to the four presidents preceding him, who all had a federal trifecta (president, House, Senate) for at least some of their first year. But it doesn’t mean he’ll be powerless. In foreign affairs, for instance, he has a lot of room to maneuver, from rejoining the Paris climate accord to reengaging with Iran on nuclear issues.
On domestic policy — the focus of this piece — his powers are more limited. But “more limited” isn’t “nonexistent.” Existing laws give the president and his Cabinet a good deal of flexibility in proposing and implementing regulations. That flexibility could be used for some fairly sweeping policy changes, from forgiving student debt to shutting down coal plants.
Pushing the limits of executive authority is sure to provoke legal challenges that the Biden administration could lose, especially with a 6-3 Republican Supreme Court. But even if only half of the options below are implemented and affirmed by the courts, the practical effects would still be hugely significant.
The best work to date on the next Democratic president’s executive action options has been done by the American Prospect through its Day One Agenda project. Many of the below options are explicated in TAP’s package; I’ve added a few ones they left off as well, and have tried to give a set of options in cases (like financial regulation) where Biden has a huge range of possible policies.
This is not a comprehensive list by any means, but the ideas below on 10 issue areas should give a taste of some of the options at his disposal and underscore an important point: that a Biden presidency without a Democratic Senate can still act aggressively to achieve his campaign promises.
Fight climate change
The bad news is that Joe Biden’s plan to invest $2 trillion in clean energy over four years is probably dead on arrival with a Republican Senate. But the good news is that there’s a ton the executive branch can do all on its own to curb climate change.
The most obvious steps involve reviving measures taken during the Obama administration. Biden has promised to rejoin the Paris climate accord on day one of his presidency.
Beyond that, he could revive the more than 125 environmental rules (and counting) — including more than 40 involving greenhouse gases directly — that the Trump administration rolled back. He could restore California’s waiver allowing it to set stricter car emissions rules, which the Trump administration has tried to revoke. He could revoke the Affordable Clean Energy rule, the Trump’s administration’s replacement for the Obama administration’s Clean Power Plan rule, and replace it with a rule leading to net-zero emissions by 2035, his stated goal for his climate policy.
Vox’s Umair Irfan has a full list of executive actions that Biden has already committed to taking. Here are a few notable ones:
Requiring aggressive methane pollution limits for new oil and gas operations
Using the federal government procurement system — which spends $500 billion every year — to drive toward 100 percent clean energy and zero-emissions vehicles
Ensuring that all US government installations, buildings, and facilities are more efficient and climate-ready, harnessing the purchasing power and supply chains to drive innovation
Reducing greenhouse gas emissions from transportation — the fastest-growing source of US climate pollution — by preserving and implementing the existing Clean Air Act, and developing rigorous new fuel economy standards aimed at ensuring 100 percent of new light- and medium-duty vehicles will be electrified and annual improvements are made for heavy-duty vehicles
Doubling down on the liquid fuels of the future, which makes agriculture a key part of the solution to climate change. Advanced biofuels, made with materials like switchgrass and algae, can create jobs and new solutions to reduce emissions in planes, oceangoing vessels, and more.
Saving consumers money and reducing emissions through new, aggressive appliance and building efficiency standards.
Protecting America’s natural treasures by permanently protecting the Arctic National Wildlife Refuge and other areas impacted by President Trump’s attacks on federal lands and waters, establishing national parks and monuments that reflect America’s natural heritage, banning new oil and gas permitting on public lands and waters, modifying royalties to account for climate costs, and establishing targeted programs to enhance reforestation and develop renewables on federal lands and waters, with the goal of doubling offshore wind by 2030
Forgive student debt
Senate Minority Leader Chuck Schumer and Sen. Elizabeth Warren (D-MA) have called on the Biden administration to use executive authority to forgive the first $50,000 in federal student debt for every borrower with federal student loans (more than 92 percent of student loan debt is owned by the federal government rather than private issuers).
The idea, as Vox’s Ella Nilsen has explained, relies on a power known as “compromise and settlement” authority granted under the Higher Education Act of 1965. Advocates for using the power for debt forgiveness, which was pioneered by legal scholar Luke Herrine, argue that it gives the secretary of education broad powers to waive and modify debts.
The legislation intended that power to be used in cases of hard-to-recover debt, as a way to settle with delinquent parties, similar to how debts are discharged in bankruptcy. But Schumer, Warren, Sen Bernie Sanders (I-VT), and others have embraced the idea that compromise and settlement authority gives the Education Department the power to forgive as much student debt as it likes. (Note that this is a different authority than President Trump used to suspend student debt payments this summer.)
That would be a dramatic escalation of the power’s usage, and would likely be challenged in court (though it’s not clear who would be harmed by the action and thus have standing to sue). Critics also note that holders of student debt tend to be high income — the sizable number of American adults who never attended college, for instance, don’t have student debt and would get nothing, despite being economically disadvantaged relative to college graduates.
But advocates of relief note evidence suggesting that debt relief can encourage former debtors to take more risks and get better jobs, which is good economically, and that many debtors are actually college dropouts rather than privileged people with advanced degrees.
Trump set the refugee cap for fiscal year 2021 at only 15,000 people, down from the 110,000-person ceiling that Barack Obama set his last year in office. Biden has explicitly promised to raise it to 125,000 and increase it from there.
That’s only one of the many differences between Biden’s promised executive approach on immigration and the one Trump has pursued recently. Biden has promised not to build “one more foot” of the US-Mexico border wall that Trump has championed. As Vox’s Nicole Narea detailed, the president-elect has also promised a comprehensive rollback of many Trump initiatives, from his family separation policy to the “travel ban” on 13 mostly Muslim-majority countries to his policy of sending asylum seekers at the border back to Mexico. He could also try to repeal the “public charge rule,” which effectively places a wealth test on prospective immigrants and green card applicants, through the rulemaking process.
He has also promised to revive the Obama-era Deferred Action for Childhood Arrivals (DACA) program that offered protection from deportation to nearly 644,000 immigrants who arrived without authorization as children. He has also said he’d revive, in some form, Temporary Protected Status (TPS) and Deferred Enforced Departure (DED), two programs protecting hundreds of thousands of immigrants from El Salvador, Sudan, Nicaragua, Haiti, and Liberia, which the Trump administration has attempted to wind down.
Creating a path to citizenship for unauthorized immigrants would require congressional action. But there is a lot short of that that Biden could do to make the US more welcoming for immigrants.
Ease the ban on marijuana
Even in jurisdictions where medical and recreational marijuana is legal at the state level, selling, buying, or using the substance is still technically illegal under federal law. Under the federal Controlled Substances Act, the federal government has the power to assign drugs to different “schedules” based on their medical value and potential for abuse.
As my colleague German Lopez has explained, drugs deemed to have no potential for abuse are “unscheduled.” The highest schedule, Schedule 1, is reserved for drugs with high abuse potential and no medical value, while Schedule 5 is for drugs with some but limited abuse potential but high medical value. Currently, marijuana is Schedule 1, the same classification as heroin, LSD, ecstasy/MDMA, and psychedelic mushrooms. Activists have long decried that classification (for both marijuana and some of its fellow Schedule 1 drugs) as minimizing the drug’s medical value and overstating its potential for abuse.
The federal ban has major consequences in jurisdictions with lax marijuana laws, from limiting legitimate cannabis businesses’ access to the banking system, to banning millions of federal employees from using marijuana in states where it’s legal, to causing evictions of state-legal marijuana users from federally subsidized housing.
“The schedule is not something the president could change alone, but the administration, through the attorney general or secretary of health and human services, can begin a review process for the current schedule,” Lopez explains.
There are complications, however. The review process would require some large-scale clinical trials demonstrating that marijuana has medical value; none of those exist currently, ironically because of the drug’s Schedule I classification. Moreover, even if marijuana is rescheduled to Schedule II, it would remain effectively illegal federally — cocaine and methamphetamine, for instance, are Schedule II drugs that can be legally prescribed in certain medical contexts, but the federal government still aggressively prosecutes cocaine and meth cases. And rescheduling to below Schedule II, or removing marijuana from the schedule entirely, could violate existing international treaties.
The best prospect for federal marijuana legalization would be for Congress to pass legislation descheduling it, much as alcohol and tobacco are not scheduled drugs despite their limited medical value and high potential for abuse. The MORE Act, introduced in the Senate by incoming Vice President Kamala Harris, is set for a House vote soon, and would totally deschedule cannabis, expunge low-level marijuana offenses from offenders’ criminal records, and offer early release to convicts currently in prison for cannabis offense. It has some (limited) bipartisan support, with conservative Reps. Matt Gaetz (R-FL) and Tom McClintock (R-CA) on board.
But MORE could fall short in the Senate, and Biden has sounded cool toward full legalization of marijuana in the past. Gabrielle Gurley of the American Prospect outlines a few steps Biden could take if he changes his tune and needs to act through executive power, including blanket pardons for marijuana offenses, pushing for additional studies to enable administrative rescheduling of cannabis, and rescinding a Reagan-era executive order banning federal employees from using cannabis.
Reverse Trump’s rollback of air pollution and lead poisoning rules
While climate change is the primary environmental challenge facing the Biden administration, the Environmental Protection Agency could also be doing a lot more to fight two other scourges with major negative ramifications for human beings: fine-particle air pollution and lead poisoning in water, soil, and paint.
Lead, of course, has profound negative effects, from a near-doubling of heart disease death risk to lower IQ and school testing scores, higher teen pregnancy and drinking, severe neurological damage, and higher crime — to the extent that a reduction in lead poisoning might have been a major contributor to the crime decline in the past three decades. There’s also no safe level of lead: The CDC uses 5 micrograms per deciliter as its threshold for lead poisoning in children, but levels below that can still be profoundly damaging.
Particulate matter air pollution — especially what experts call PM 2.5, or particulates smaller than 2.5 micrometers in diameter — has a similarly broad range of negative effects, including increased dementia/Alzheimer’s, faster aging, mental impairment, lower economic productivity, worse student performance on tests, and death. Air pollution kills an estimated 250,000 Americans every year.
The EPA has underregulated lead and air pollution for years, and the Trump administration has attempted to ease up on regulating air pollution in particular. Biden’s EPA could push in the opposite direction, and executive action on these two fronts could well end up being among the more consequential that a Biden administration could take.
Cut back on factory farming
There’s a lot of low-hanging fruit for the Biden administration to tackle in confronting factory farms, a sector that has helped spread Covid-19 and been coddled by the current administration.
Humane Society Legislative Fund president Sara Amundson had a useful rundown of these the other day. Biden’s administration could, for instance, reverse Trump administration moves to increase line speeds at slaughterhouses (including eliminating speed limits at pig plants altogether). That would be a huge win for workers in those plants, but also reduce the number of animals being slaughtered every year. It could also bring back the Obama administration’s “animal welfare rule,” which imposed higher standards for organic farms.
The Trump administration has also finalized a number of rules expanding fishing (including loosening restrictions meant to prevent bycatch of the endangered Atlantic bluefin tuna) and expanding hunting (such as of predators like Alaskan wolves, and of grizzly bears) that animal advocates would like to see reversed.
Jonathan Lovvorn, faculty co-director of Yale’s Law, Ethics, and Animal Program, tells me he’d like to see Biden “issue an [executive order] directing USDA, EPA, and other agencies to catalog all the regulatory and enforcement exemptions currently bestowed on factory farms, and to develop a regulatory action plan to restore environmental, labor, animal welfare, and climate accountability to this industry.”
Specifically, Lovvorn also highlights the need to incorporate animal agriculture, which accounts for a huge chunk of greenhouse gas emissions, into Biden’s climate policies, including by listing emissions from CAFOs (concentrated animal feeding operations, the technical acronym for factory farms) as pollutants covered by the Clean Air Act. He’d also like to see a Biden executive order halting explicit government support for the construction or expansion of any new CAFOs.
Both Lovvorn and Leah Garcés, president of the animal protection group Mercy for Animals, call for Biden to direct the USDA to interpret the Humane Slaughter Act, a 1958 law that, while poorly enforced, nonetheless provides valuable protections to cattle and pigs, so that it applies to poultry for the first time.
For more on what Biden can do to address factory farming, you can read my article here.
Create a postal banking system
Many advocates and scholars, including Biden transition adviser and UC Irvine law professor Mehrsa Baradaran, have been pushing for years for the United States Postal Service to use its authority under existing law to offer retail bank accounts. The American Postal Workers Union has aggressively pushed for the idea in its negotiations with USPS, and it’s one of the Biden-Sanders unity task force recommendations from this past summer.
The idea is to provide free, or at least extremely low-cost, banking services to people currently outside the mainstream banking sector. Millions of Americans are un- or underbanked, due to either choice or lack of access. Overdraft fees, “monthly maintenance fees,” and other charges can make keeping even a basic checking account at a major bank a burden, especially since those fees are mostly paid by low-income people.
The push for postal banking has mostly come through legislation like Sens. Kirsten Gillibrand (D-NY) and Bernie Sanders’s (I-VT) Postal Banking Act, which could be combined with similar proposals to allow all Americans to create checking accounts at the Federal Reserve (perhaps post offices could be the retail interface to Fed accounts).
But as Bryce Covert notes in the American Prospect’s Day One package, an aggressive Postal Service leadership could make some moves in this direction on its own. This would require Biden appointing and confirming enough nominees to the Postal Service’s Board of Governors that could replace the postmaster general, Louis DeJoy, with a postmaster committed to implementing postal banking. There are three vacancies on the board currently, one seat that vacates in December 2021, and two that vacate in December 2022, giving Biden the ability to fill it with pro-postal banking governors during his first term.
The USPS’s Office of the Inspector General in 2014 floated a few ideas for how the service could try out postal banking without new legislation, like offering a checking account-like “Postal Card” that could be loaded and reloaded with cash or check deposits. A 2006 law limits the Postal Service from launching new, non-mail services, and could be used to challenge such initiatives; ultimately, legislation would be a sounder footing for postal banking than unilateral Postal Service action. But Biden does have options to get creative here should he choose.
Crack down on Wall Street
The executive branch has extensive discretion when it comes to regulating the financial industry, both due to provisions in 2010’s Dodd-Frank Act and from preexisting securities law. And especially with the Trump-appointed head of the Securities and Exchange Commission resigning to make room for a Biden appointee, Biden and his team could use their authority either timidly (by keeping existing regulation or even deregulating for preferred sectors like community banks) or extensively (up to and including breaking up megabanks like Goldman Sachs or Citigroup).
Graham Steele, a former senior aide to Sen. Sherrod Brown (D-OH), the ranking Democrat on the banking committee, outlined what an aggressive strategy would look like in a piece for the American Prospect’s Day One package. It includes:
- Imposing a size cap on banks, using the Federal Reserve’s authority under either Dodd-Frank or the Federal Deposit Insurance Act. The regulation could follow proposed legislation by Sen. Bernie Sanders (I-VT) and Rep. Brad Sherman (D-CA) and break up JPMorgan Chase, Bank of America, Citigroup, Wells Fargo, Goldman Sachs, and Morgan Stanley, as well as the insurers Prudential, MetLife, and AIG. This is a fairly unlikely and extreme option, but one with some support within the Democratic Party.
- The Dodd-Frank Act required large banks to set up plans, colloquially known as “living wills,” for their orderly and safe dissolution in the event of a crisis; the idea was to avoid a repeat of the chaos of Bear Stearns’ and Lehman Brothers’ collapses in 2008. These “living wills” could be used to force major banks to divest some of their lines of business, so they shrink and become less powerful. FDIC and the Federal Reserve jointly issued the “living wills” rules and could take the lead on this issue.
- Having the Federal Reserve use the Bank Holding Company Act of 1956 to force large banks to divest major parts of their business if the bank is considered not well-managed or threatening to the safety or stability of the financial system.
- Having the Office of the Comptroller of the Currency and the Federal Reserve limit the definition of “banking” to get megabanks out of commodities like electricity and oil and to limit their ability to trade complex derivatives (like the credit-default obligations, credit-default swaps, etc. that contributed to the 2008-2009 financial crisis).
- Using the SEC to more meaningfully reform ratings agencies and eliminate the perverse incentive of having the issuer of derivatives pay for their rating (which could lead to risky derivatives being rated as safe).
- Using the Sarbanes-Oxley Act, enacted in the wake of the Enron and WorldCom scandals, to more aggressively prosecute and imprison financial executives to ensure individual accountability.
The upshot is that the US has some incredibly powerful laws for regulating the banking industry, both because of Dodd-Frank’s passage and predating it. The question is how aggressively the Biden administration wants to enforce those laws. You can read more in Steele’s story here.
One idea Steele doesn’t touch on is banning stock buybacks, in which public companies repurchase their own shares from investors. These become an increasingly popular way for corporations to reward shareholders. They face a lower tax burden than traditional dividends (especially after the 2017 tax cuts), and they can boost share prices. But as Vox’s Emily Stewart has explained, they have serious costs. They can cause corporations to prioritize the short-run interests of shareholders above long-run growth, and they can divert funds from both wage increases for workers and R&D/investment in new products.
Luckily, if Biden and his SEC chair want to fight stock buybacks, there’s a simple fix: repeal rule 10b-18, the agency’s 1982 rule that legalized buybacks in the first place. Before 10b-18, buybacks were considered per se stock manipulation and were banned. Repealing 10b-18 would return to that policy regime. Corporations could still reward shareholders through (higher-taxed) dividends, but in doing so they would incentive holding on to stock for longer rather than speculating.
Crack down on monopolies
America’s primary antitrust law, the Sherman Antitrust Act, was passed in 1890, but how aggressively it’s enforced, and against whom, has varied a lot over the past 130 years.
It would be impossible to give a full account of all the possible antitrust actions that the robust and vocal anti-monopoly movement has called on the executive branch to engage in, but here are a few:
- Continuing and potentially broadening the Justice Department’s antitrust action against Google, announced last month
- Expanding Big Tech antitrust actions by pursuing Apple, Facebook, and Amazon, as urged by a House Judiciary Subcommittee report last month
- Adopting the Biden-Sanders unity task force recommendations and Biden’s health care plan by using existing law to “fight against mega-mergers in the hospital, insurance, and pharmaceutical industries that would raise prices for patients”
- Following Biden’s plan for “rural America” by using the Sherman Act, the follow-up 1914 Clayton Antitrust Act, and the 1921 Packers and Stockyards Act, to fight concentration in the agriculture sector to “make sure farmers and producers have access to fair markets where they can compete and get fair prices for their products.” This could include bringing back the “Farmer Fair Practices Rules” adopted by Obama’s Department of Agriculture.
- Appointing aggressively anti-monopoly commissioners to the Federal Trade Commission who can promulgate general rules barring uncompetitive practices like noncompete clauses for workers
Sandeep Vaheesan, legal director at the Open Markets Institute and a prominent anti-monopoly voice, has a longer and more detailed list at the American Prospect.
Expand access to health care
Vox’s Dylan Scott has looked into what Biden can do on health care with executive power. At the very least, Biden will stop the Trump administration’s efforts to undermine the Affordable Care Act (for instance, by reducing spending on outreach). He will likely also roll back the Trump administration’s efforts to encourage states to adopt work requirements for Medicaid. But there are some bigger opportunities, Scott explains:
Every center-left health policy expert I spoke with flagged one administrative action that Biden could take that would extend health coverage to a million people or more: fixing the “family glitch” in the Affordable Care Act. ...
In brief: Somewhere between 2 million and 6 million Americans have been deemed ineligible for premium subsidies that would help them purchase an Obamacare insurance plan because of an Obama-era regulation.
The ACA doesn’t allow a person to qualify for premium subsidies if they have an offer of affordable health insurance from their employer. The IRS under Obama concluded that the family members of the person who gets employer-sponsored coverage also don’t qualify for subsidies, even if an employer plan would be much more expensive for the family members than it is for the worker, as is often the case. ...
Democrats have proposed fixing the family glitch through legislation, though that seems unlikely if Republicans control the Senate. But left-leaning policy and legal experts believe a Biden administration could simply rewrite the IRS regulation that created the glitch and make those people eligible for coverage.
And that’s far from the only big health care action Biden could take.
There is a long wish list of other administrative changes Biden could make to improve health coverage. He could ease federal rules about taking back money from people who are found to have received too big a subsidy when they file their taxes. He could increase the oversight of private insurance brokers. A Biden administration could establish a special enrollment period for people to sign up for ACA coverage, which Trump has refused to do during the Covid-19 pandemic.
But the most likely venue for innovation that could insure more people would be a state waiver program created by Obamacare known as 1332 … States have big ideas for what they could propose under a 1332 waiver with the Biden administration in power: a public option, or provider rate-setting, or various proposals to cut drug costs.
For more, see Scott’s full story here.