By every sane standard, Joe Biden is president-elect of the United States and will be sworn in to the position at noon on Jan. 20, 2021. Of course, getting from here to there will be dangerous, jolting, turbulent or worse. Donald Trump is doing his best to blow up the election, our fundamental political system and the transition to the next administration, and the landscape Biden will face as president will be filled with craters and mines.
But for today, let’s assume that, after appropriate and thorough fumigation, President Biden will sit down behind the Resolute Desk in the Oval Office and map out his first 100 days and beyond. What can he do? What should he do?
There is one big question looming that has the most direct impact on answering those questions: Which party will control the Senate? We will not know until Jan. 5 at the earliest, when we will get preliminary results from the two Georgia runoff elections. If Democrats win both, they will have narrow control of the body, probably 50-50 with Vice President Kamala Harris there to cast tie-breaking votes.
If Chuck Schumer is majority leader, expect an expedited process to confirm Biden nominees, not just for Cabinet posts but agency heads and hundreds of other executive positions. Do not expect immediate moves to eliminate or reform the filibuster; the votes simply will not be there among 50 Democrats that include Joe Manchin, Kyrsten Sinema and Dianne Feinstein. Look for an early vote on HR 1, a sweeping democracy reform package, and a Republican filibuster. But we should also anticipate an early push for an ambitious COVID relief/economic stimulus/infrastructure package, which also might well be filibustered.
And that brings us to the major legislative initiative of the early Biden presidency: a budget reconciliation bill on steroids, with Democrats changing the rules to make it easier to include major spending along with a tax bill increasing rates on corporations and individuals making more than $400,000, removing limits on the state and local tax deduction, raising estate tax rates and lowering exemptions, and taking away the ability to use the debt ceiling as a political weapon.
Reconciliation would also be the vehicle to reform the health care system to include a public option and to spread coverage to millions more Americans. (Reconciliation, for those unfamiliar with it, is a budget-related process that provides for an expedited up-or-down vote by simple majority in the Senate. It was used to accomplish President George W. Bush’s two big tax cuts in 2001 and 2003, the Affordable Care Act in 2010 and the ginormous Trump tax cuts in 2017.)
But if, as is at least somewhat more likely, Biden faces a Republican Senate with McConnell continuing as majority leader, he’ll have a daunting set of challenges and limited tools. Here’s one blueprint for progress.
1. Make sure hundreds of key executive posts are nominated on Day 1. It is a common failure of incoming administrations to take months vetting nominees for positions like heads of agencies and assistant or undersecretaries of departments. The Senate is geared after an inauguration to process nominees; stragglers are more vulnerable to holds, slowdowns or worse.
Sharply accelerating this process is even more urgent for Biden. Why? First, McConnell has made clear that there will be no pass for Biden’s executive posts, especially those he believes are too progressive. To be sure, the last Cabinet nominee of a president rejected outright by the Senate was 32 years ago: John Tower as secretary of defense during the administration of George H.W. Bush (his replacement: Dick Cheney). But this is a different time and a different Senate.
2. Be prepared to use the Vacancies Act to fill posts held up by the Senate. No one has used — or abused — the Vacancies Act like Trump. The way has been paved for a President Biden to fill key positions if the Senate won’t act. Of course, it will be trickier for Biden — top posts can be filled temporarily only with those who have been confirmed to other positions. Which is another reason to flood the zone with nominees, to have qualified people in second-level positions who can fill in to combat Senate obstruction.
3. Make recovery from COVID the top priority. Of course, Biden has already made this clear, creating a pandemic task force with a superstar list of infectious disease specialists. He will no doubt address this more during the transition with updates and statements to the public. But making it the top priority means that he will have to ensure a focus not just on vaccine development but distribution once vaccines like Pfizer’s are cleared to implement.
That will not solve the COVID crisis. He must also emphasize state-of-the-art, widespread accurate testing and contact-tracing; work to make mask-wearing near-universal; allocate money to making sure that schools can reopen with adequate precautions for testing and social distancing; and craft an economic recovery and jobs package with a particular focus on ameliorating the specific problems created and exacerbated by the virus, from job loss, evictions and foreclosures, to the increase in domestic violence, to the categories of jobs that will not come back or will lag, and the preparation for combating future viruses.
4. Move serious executive orders and executive actions on Day 1. We know that Biden is ready to rejoin the Paris Climate Accords and rejoin the World Health Organization, protect DACA recipients, reverse Trump’s travel ban, move to restore ties to NATO, reach out to neglected allies in Asia like Japan and South Korea, remove destructive tariffs and find a route back to an Iran nuclear deal. He needs also to go point by point to undo Trump’s destructive actions on immigration and on the environment. Showing serious action on the latter two fronts will go a long way toward making the Democratic Party’s base believe that their votes made a difference.
5. Lead with a major COVID recovery package. It is very likely that McConnell, who opposed any serious stimulus package for the past six months, will now do a 180 on COVID relief in the coming lame-duck session; he would rather Trump get credit than Biden, and get it done before the crucial runoff elections in Georgia. Look for him to try to keep the package as limited as possible to head off a major Biden initiative by saying he already did it.
But much more will be needed — and it must include infrastructure. For reasons that baffle me, Trump never pushed a big bill to do roads, bridges, waterways, sewers, broadband, a major infrastructure/climate bank, all things with broad bipartisan support and critical needs. Now, with Republican senators up in 2022 like Rob Portman in Ohio and Ron Johnson in Wisconsin, states hurting over the loss of manufacturing jobs, a big push on this front might get to the Senate floor without a filibuster and get robust support.
6. Look in Congress for issues just below the radar, where tribalism may not prevent bipartisan action. The high profile issues — a public health insurance option, guns, tax reform or tax increases, for example — automatically trigger tribal opposition and will not get to the Senate floor while McConnell is leader. But other important issues, including criminal justice reform and reform of the mental health system, do not have the same potential for partisan division. Adding mental health teams to police units answering calls from psychologically disturbed individuals, moving toward further decarceration, can pass. So can targeted, incremental reform of immigration, reform of the student loan system, an education apprenticeship initiative and more.
7. Use the pardon power to amplify criminal justice reform. Trump, to his credit, did pardon some people in prisons who deserved richly to be freed, and signed federal prison reform. But there are thousands more people, especially people of color, who had been caught up in the drug war with mandatory minimum sentences for trivial offenses. If Biden puts in charge of the pardon office someone who has a mandate to aggressively examine a large number of these cases, it is the kind of use of the pardon power that is entirely positive, and would make a huge difference — and take off the table entirely the fallout from the worst consequences of the 1994 Crime Bill he championed.
8. Change the way Inspectors General are chosen. Trump has fired multiple IGs, left other slots vacant and replaced many with incompetent or questionable replacements. To combat corruption and mismanagement, Biden needs to announce a new process: Every inspector general he will nominate will come from a list of at least five nominees coming from a blue-ribbon panel of former IGs and ethics experts, and any vacancy will be filled from those lists. And every existing IG must sign a letter of resignation, although some may be re-nominated if they are on the panel’s lists.
9. Do not let frivolous investigations bog you down. One thing is certain from a McConnell-led Republican Senate: Ron Johnson, Lindsey Graham and others will conduct Benghazi-like investigations into Hunter Biden, Joe Biden, the Biden White House and any other targets they can find. They will try to tie up staffers, subpoena officials and documents, and otherwise keep a Biden administration from focusing on its priorities. Trump paved the way for ignoring subpoenas and defying Congress; Biden should not embrace all those tactics, but should be very clear about what is a real investigation and what is not.
10. Empower the career staff at both the Southern District of New York and the Public Integrity Section of the Justice Department to investigate any allegations of Trump administration wrongdoing. It is a dilemma Biden will face early in office: What to do about a Trump administration that was more corrupt than every other administration combined? Some have called for a Truth and Reconciliation Commission, modeled on post-Apartheid South Africa. That would be a mistake. Better to make clear that Manhattan’s U.S. attorney will empower career staff, without any interference, to examine every allegation and determine the right course of action, and to do the same with the Justice Department’s Public Integrity Section.
Letting it all go would set a disturbing precedent for future administrations: you can do anything and you will get away with it. But making sure miscreants are held accountable has to be completely divorced from political pressure or considerations.
Make no mistake about it: If and when Joe Biden gets through this minefield, a divided country and a still-tribalized political system will make his presidency challenging. But there are steps he can take to maximize his impact and craft a way forward.
Ornstein is a resident scholar at the American Enterprise Institute.