FIRST BIG DECISION FOR THE BIDEN ADMINISTRATION: THE CLOCK TICKS

 

Joe Biden and Kamala Harris took office January 20, assuming the burden of righting the American ship. They have a big job and not long for getting it done.  They’ll have

tough decisions before long. Political reality and history teach that the clock has already started ticking on what they can accomplish.

Presidential terms run four years, but windows of opportunity for passing major legislation close quickly under the weight of pent-up frustrations in a president’s own party, approaching mid-term elections, and opposition candidates revving their engines on runways for the next presidential race. Biden enjoys no exemption from this cruel cycle. Anyone looking hard enough can 

see it looming in the distance.

Biden’s Burden

Biden’s first days have made clear his priorities: (1) get the pandemic under control,(2) fix the related economic problems, (3) address climate change, and (4) attack racial injustice. Biden’s team acknowledges things like infrastructure, tax reform, and rectifying some of former President Donald Trump’s  excesses must wait. That array of priorities creates challenges and opportunities.

Fires rage around the four priorities and many reasons exist for tackling them first.  The country watches carefully. Other than the rabid COVID-19 deniers, most Americans want an end to the death, pain, and personal sacrifice that go with the pandemic.  We can’t imagine anyone being happy with the job losses and business disruption. Many of us have been railing about climate change and racial injustice for years. A strong desire exists for taking on Biden’s targeted issues.

That doesn’t mean his solutions will get unanimous support, or even enough for solid progress. He has offered big, bold proposals for dealing with all four problems. He wants, for example, a $1.9 trillion COVID-19

relief package that includes big stimulus checks, minimum wage increases, significant dollars for cash-strapped state and local governments, and vaccine distribution money.

That’s where the hard choices come. Because Biden’s proposals will draw Republican opposition – even obstruction – he soon must choose between proceeding in the bipartisan way he prefers and taking what he can get with only Democratic support. Thanks to Harris as vice president, he enjoys a one-vote majority in the senate. Speaker Nancy Pelosi presides over a narrow Democratic advantage in the House. Biden has so far refused invitations to set deadlines, but everyone expects a day of reckoning will come. He can keep seeking bipartisan approval or go it alone, knowing he must act quickly or lose his chance. 

 

The Politics

Right now, Biden’s Democratic support results from a coalition of the willing. Moderate

Democrats cut in the mold of senators like Dick Durban of Illinois and John Hickenlooper, a rookie from Colorado, and progressives like Senator Elizabeth Warren of Massachusetts and New York Representative Alexandria

Ocasio Cortez remain on board. Nobody knows how long Biden (and Harris) can keep this fragile alliance together. He’s avoided a fracture by making cabinet and staff appointments that have something for everybody and issuing executive orders addressing the pent-up frustrations of both sides of his potentially divided house, a house motivated by intense distaste for Trump. With Trump gone, how long this glue sticks remains an open question.   

Across the aisle, some Republicans see the virtue in working with Biden. How many isn’t clear. It’s likely a small number in either house of Congress. Assuming the filibuster rule remains, if it’s ten in the Senate, Biden could get 60 votes and potentially pass broad legislation, like he’s proposed on COVID-19. If it’s one or two, or zero, he’s probably reduced to a stand-alone vaccine distribution bill many Republicans would vote for or something he could pass under budget reconciliation that only requires 51 votes. It’s hard to imagine what such bills would look like, but they won’t have the big, bold provisions Biden wants.

Many Republicans will say they oppose Biden’s bills – especially the COVID-19 relief package -- because of cost. Ordinarily they’d have a point, but under the current unique circumstances, their argument holds much less weight. With interest rates as low as they are, the government can borrow for a big relief package for next to nothing. Given how much the pandemic costs in health care expenses, lost tax revenue, and infrastructure expenditures incurred in fighting the disease, arguably the nation can’t afford not enacting a big package.  

A Little History

Biden should keep in mind Barack Obama’s

2009-10 experience with the Affordable Care Act. Obama believed he could get Republican support if he scaled back the bill by (1) leaving out a public option and (2) modeling the program after what Mitt Romney implemented in Massachusetts. Democrats screamed, but Obama held firm. GOP votes  never came and Obama, having lost his 60-seat senate majority with the

death of Ted Kennedy and the surprise victory of Scott Brown in a Massachusetts special election, settled for no public option and passing the bill under 

the reconciliation 

procedure.

Biden was there, of course, as vice president, so he’s  aware of the dilemma he’ll soon face. The fact the country wants COVID relief as 

badly as it does arguably gives him cover. If he can make real progress on ending the pandemic, many people outside Washington won’t care what he asked Congress for and did or didn’t get. He can declare victory and take on the next problem with good will stored away.

Biden doesn’t have forever. Republicans have started showing their hand, complaining about the size and scope of many of his proposals and asking why he hasn’t  consulted

more with them. Nearly everyone wants bipartisan solutions to the nation’s problems -- except those who don’t and, unfortunately, some of them serve in Congress.   

                     

THOUGHTS ON THE NEW ADMINISTRATION’S AGENDA: A LITTLE ADVICE FROM FRIENDS

 

In a month, Joseph Robinette Biden, Jr. takes the oath of office as the 46^th President of the United States and Kamala Devi Harris the oath as the 49^th Vice President of the United States.  She becomes the first woman to hold either office.

They take over at a difficult, perilous time. A once-in-a-century pandemic rages, accompanied by devastating economic consequences. The country remains politically and racially divided as killings by police of African Americans continue and criminal justice reform remains undone. Climate change poses an existential threat to the entire planet. Biden and Harris have plenty to do and we have some advice for them on their agenda.

COVID, COVID, COVID
Biden has long acknowledged subduing the Coronavirus pandemic would represent his first and most pressing challenge. It’s difficult not to view the leadership void on COVID-19 as the Trump Administration’s greatest failure. As to Biden’s challenge, we recognize that not only did Trump fail through inaction (e.g., never effectively using the Defense Production Act) and lies (“We’re turning the corner.”), he made things worse by poisoning the well with the public in ways that will make Biden’s job more difficult. 

Biden thinks (correctly) we can tamp down the virus through measures like mask wearing and social distancing until vaccines essentially eviscerate the disease. Because of Trump’s politicization of mask wearing and social distancing, Biden will have difficulty getting buy-in on sacrifices that fight the virus in the interregnum between now and widespread vaccine distribution next spring and summer.

By tying vaccine development to his re-election campaign, Trump made some think vaccines now being rolled out were rushed for political purposes. Combine that with a growing, general anti-vax crowd and skepticism about medical researchers based on history in the black community, not as many people may take a vaccine as needed for complete effectiveness.

Biden must enlist every political icon (former Presidents Clinton, Bush, and Obama say they’ll get vaccinated publicly), celebrity, community leader, and trusted religious figure in encouraging vaccination and adherence to the measures still needed for suppressing the virus. Without beating COVID-19, Biden can’t get the economy going. He must push for a new stimulus/relief package from Congress. Yes, we know Mitch McConnell will likely stand in the way, but Biden must make clear to the American people who stands with whom. A president who pushes for what many Americans need so badly could make a difference. Biden can show there remains that thing called the “bully pulpit.” 

Race
At some point, every American president gets an exam question on race. Nearly all fail. Biden has a unique opportunity because, based on the protests last summer, much of the country seems ready to try. The old political barriers remain, but that’s no excuse for inaction. We see several legislative approaches Biden should support and push for:
·    enactment of the John Lewis Voting Rights Act (it’s already passed the House);
·    revising many of the actions taken in the 1994 crime bill Biden played a role in passing, emphasizing reducing incarceration for minor drug offenses;
·    limiting criminal and civil immunity in police shooting cases;
·    ending no-knock warrants; and
·    reform measures that would foster increased use of psychologists and social workers, not police officers, in certain domestic situations and other encounters that often lead to police shootings.

State and local governments probably can accomplish more on some of these things, but federal legislation could establish goals and guidelines.

We also think there’s merit in dusting off President Clinton’s “National Conversation on Race” idea. We have an open mind about what form such an effort should take. We know one thing: if we won’t talk about a problem as big, as morally important as this, it won’t ever get solved.

Climate
We’ve written on this a few times, but not enough. We promise we’ll do better. This year – this awful 2020— demonstrated the issue’s importance. Wildfires in the west, storm damage in the middle of the country, and hurricanes and tropical storms in the Southeast and on the Gulf Coast represent the most visible examples of the gravity of the climate change problem.  At least now we have a president who doesn’t deny the science and accepts that not much time remains for addressing the problem.

Biden has taken two steps we heartily endorse. He says he’ll immediately put the United States back into the Paris Climate Accord. This signals the new administration’s seriousness about making America a major participant in anti-climate change efforts. 

Second, Biden has named former State Secretary John Kerry his special climate advisor. Kerry knows this issue well and will sit on the National Security Council since climate change constitutes a national security issue.

We suggest an “all of the above” climate 

approach that advocates multiple ideas. Some special interest will fight every climate proposal. Even corporations professing

support for action on climate change present much different ideas than climate activists. The administration, therefore, should not hang its hat on any one solution. It will lose legal, legislative, and administrative battles, so it needs a comprehensive, multi-faceted approach. We see this problem as so big and so important; Biden must remain creative and push every idea that might do some good.  

       What advice would you offer on the Biden-Harris agenda? 

    

TRUMP AND A CRAZY LITTLE THING CALLED “SIGNING STATEMENTS”: ANOTHER REASON FOR VOTING

In the American system, Congress passes laws,  the president signs and carries them out, and the courts interpret them or

determine if they’re constitutional, right?  It turns out it’s not quite that simple. Thanks to signing statements, presidents may put their thumbs on the scale and say more about what a law means, in practice, than does Congress.

 

President Trump exerted that kind of presidential primacy in connection with a key portion of the $2.2 trillion economic stimulus package aimed at helping the nation through the current coronavirus pandemic. Congress

passed that legislation March 27 and Trump signed it the same day. Hours later he released a signing statement indicating he doesn’t intend on complying with all the provisions of the law that would assure transparency in the $500 billion part of the legislation aimed at helping corporations. So, what’s a signing statement and can Trump do what he said he’d do?

A Tradition from Nowhere

Signing statements express a president’s view of the constitutionality of specific legislation or how his interpretation of the legislation will guide enforcement of it or its

anticipated impact. They date back to James Monroe’s presidency. Ronald Reagan rapidly expanded its use in the 1980s. The Gipper issued 250 of them. In only one term, his successor, George H.W. Bush, issued 228. Bill Clinton

issued 381 during his eight years in the White House, Barack Obama 37. Historians now regard George W. Bush as the king of signing statements. Though he issued only 161 separate signing statements, he used them in challenging over 1000 provisions of various laws. The great classicist and historian Garry Wills once told an audience the younger Bush challenged more provisions of laws through signing statements than all his predecessors combined.

 

Despite this history, the federal constitution does not include a signing statement provision. They’ve just sort of become part of the legislative process. Members of Congress and others have challenged the actions presidents have taken through signing statements. Such challenges assert the president acted in a way at odds with the intent of Congress in passing the law at issue. The challenges have a mixed record, with the outcome of the cases turning on whether the court concluded the president did or did not enforce the law as Congress intended. Courts have not, however, declared the practice of issuing and using signing statements unconstitutional. 

  

Trump and the Stimulus Legislation

Trump said his administration wouldn’t treat the stimulus legislation as permitting the inspector general provided for in the bill (also known as  the SIGPR) to issue reports to Congress without his approval. In other words, the special inspector general couldn’t give Congress potentially damaging information about how the $500 billion corporate relief part of the package is being

spent unless Trump personally approved. Congressional Democrats and watchdog groups fear much of the $500 billion will get used by corporations for things like stock buybacks and executive bonus payments, not worker salaries as Congress intended.

Trump’s signing statement flies in the face of

the transparency congressional Democrats, in particular, fought for in passing the bill. Many in Congress don’t trust that Trump and his Treasury

Secretary, Steve Mnuchin, will make sure the money benefits workers, not corporate executives as occurred with TARP money during the Great Recession of 2008.

               

Certainly, presidents have used signing statements for reasons that don’t suggest evil. These include telling the public what the president expects as a likely effect of the legislation or guiding subordinates in carrying out the legislative purpose. Presidents have also used signing statements in advising the public he views some part of the bill as unconstitutional and expects a court challenge. Trump, however, suggested none of these things in his statement. He just made clear the public will find out only what he wants it to find out about the $500 billion. 

     

What to Do

When someone with dishonest motives occupies the White House, the temptation

arises to say that the courts or Congress or someone should get rid of signing statements. After all, they have no textual foundation in the constitution and Congress has never enacted a statue providing for them. 

History, though, shows that presidents in both parties use them, perhaps for good reason.

Signing statements may, under certain circumstances, function as part of our system of checks and balances. Congress, for example, could go off the deep end with ill-advised legislation a president prefers not vetoing because it contains provisions

addressing a serious national need. A signing statement, and subsequent presidential action, limiting the negative impact of the bad parts of the legislation may represent the best course for the country. Perhaps signing statements aren’t all bad.  We believe the country can take some

comfort in knowing that the courts remain the final arbiter of any action the president takes pursuant to the execution of any signing statement.

The presence of signing statements in our system illustrates the power of the presidency

and emphasizes the importance of getting right who occupies that office. In November the voters weigh in on who can issue signing statements the next four years. As we’ve said before, we can’t mess this up.