Why Biden Might Not Need McConnell’s Permission

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After four years of President Donald Trump, Democrats have no shortage of “first day” ideas for President-elect Joe Biden. A team at The American Prospect recently scanned a 110-page set of recommendations published in July by the Biden-Sanders Unity Task Force and uncovered what it believes are “277 policies that are clearly within the executive branch’s power to immediately pursue, at least in part.” Biden’s wide circle of advisers have no doubt made some lists of their own.

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The urgency among Democrats, however, poses a knotty political dilemma for Biden. The pandemic, climate change, a faltering economy, a continuing crisis of police violence, and a seeming administrative meltdown in the Department of Homeland Security (DHS) unquestionably present a daunting menu of challenges clamoring for immediate attention. But Democrats have also spent four years railing against Trump’s absurdly broad interpretations of executive power and his pugnacious evasion of legal, political, and journalistic accountability. Any effort by Biden to change policy direction quickly will be met, whether in good faith or bad, by accusations of hypocrisy.

But the president-elect has more tools for staffing the new administration and jump-starting the process of undoing Trump’s policies than may be apparent, including a tool that no president has ever used before—one that Senate Majority Leader Mitch McConnell would be powerless to block. More on this later. But it’s clear that Biden’s choice of tools and how he deploys them will signal his taste for aggression in using the powers of the presidency.


Staffing the Executive Branch

Reports are already appearing that McConnell is determined, if he’s still the majority leader, to hamstring Biden’s choice of cabinet members and subcabinet officials. Using the Senate’s advice-and-consent power to deny a president wide discretion in picking cabinet officers would break a long-standing norm. But confirmation norms were already shredded in 2016, when McConnell stonewalled Merrick Garland’s nomination to the Supreme Court. Should Democrats fail to capture the two Georgia Senate seats up for grabs in January, a GOP majority could impede Biden by slow-walking his nominees and blocking at least some of his preferred candidates altogether.

Past presidents have sought to put their stamp quickly on executive branch policy making through the appointment within the White House staff of key policy “czars.” The term lacks precise definition, but generally refers to advisers tasked with coordinating a specific area of policy across agency lines. A few of these, such as the so-called drug czar, hold statutory offices; their appointments require Senate approval. But most can be appointed without consulting the Senate. President Barack Obama broke new ground in terms of the sheer number of policy czars he appointed early in his administration. Some were conspicuously assigned to advance elements central to Obama’s campaign promises, including a climate czar, an urban affairs czar, and a health czar. The move predictably provoked GOP protest that Obama was doing an end run around the Senate’s advice-and-consent role.

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A czar-oriented strategy, however, has one conspicuous limitation: Most czars have no statutory authority. These advisers thus lack the legal power themselves to undo the policies of the administrative agencies that populate the executive branch. The power to sign off on new rules or to issue public-binding administrative orders rests with agency heads and other officers in the executive branch in whom Congress has vested decision-making authority. New presidents thus invariably want to secure Senate approval, as soon as possible, for a new slate of agency heads, along with their key subordinates, who will possess the statutory authority to implement policy changes.

Most of Trump’s agency heads will undoubtedly depart by Inauguration Day. Biden can fire cabinet members at will, and it is doubtful that any incumbents would try to stay on. (Some Trump appointees sit on independent commissions and can be removed by a president only for “good cause.” Biden will have to live with them until their terms expire or—like FCC Chairman Ajit Pai—they decide to leave voluntarily.) Biden is trying to get an early start on appointing successor cabinet members by announcing his choices to run the major executive departments now. The usual vetting that precedes Senate confirmation of administrative officials, however, is likely to take weeks or months, even if the Senate is cooperative. Biden will thus need acting officials to run a number of agencies in the interim.

The Stanford law professor Anne Joseph O’Connell, a leading academic expert on the use of acting officers, recently reported that the statute governing the “acting” title, the Federal Vacancies Reform Act, allows a president to make acting appointments to fill many of the more than 1,200 agency positions in the executive branch that require Senate advice and consent. “Actings” generally have the same powers as duly appointed incumbents. But the FVRA also restricts the pool of candidates available to be actings—typically persons who already hold Senate-confirmed appointments or who have worked for an agency already for at least 90 days and at a high enough pay grade—and puts a time limit, usually about seven months, on their service.

It seems a safe prediction that, when President Biden uses his FVRA powers, there will be Republican howls that he is doing just what Trump did. But it will not be the same. Trump used the appointment of acting officials and a close administrative cousin—an administrative “delegation of authority” from one agency official to a subordinate that allows the subordinate to do yet a third person’s job—to put officials in place who would presumably owe their political accountability solely to Trump and not to Congress. This practice has wreaked havoc with administrative order at the DHS. At this moment, of the top dozen positions in the DHS order of succession, all of which require Senate advice and consent, exactly two are filled by individuals duly nominated, confirmed, and appointed. The duties of every other position are being performed by either an acting official or a senior official formally holding a different post, but to whom the duties of the vacant line have been delegated by administrative order. This is so, even though a GOP Senate majority would have seemed sufficient to get permanent officials confirmed.

Trump’s haphazard approach to the handling of acting appointments recently led to a court decision that the acting DHS secretary, Chad Wolf, is not the department’s lawful head—and thus his orders limiting DACA, the so-called Dreamer program, were invalid. (For reasons not entirely clear, McConnell has kept the Senate from voting to confirm Wolf as secretary of homeland security, although the Senate Homeland Security Committee voted in September to recommend his confirmation.)

Beyond acting appointments, Biden might still be hampered by a recalcitrant Senate. That leads us to a surprising constitutional option—one so obscure that no president has ever used it before. Begin with the fact that, so long as the Senate is in adjournment for at least 10 days, a president can give someone a “recess appointment,” which lasts until the end of the next session of Congress. In other words, a Biden recess appointee taking office in January 2021 could continue to hold that office until December 2022. Of course, a GOP-controlled Senate would try to forestall such a possibility by keeping its adjournments shorter.

But here’s the surprise Biden could spring: The so-called adjournment clause in Article II, Section 3 of the Constitution anticipates the possibility of a “disagreement” between the House and the Senate “with Respect to the Time of Adjournment.” Should that happen—for example, if one house of Congress wanted to leave town and the other wanted to stay in session—the Constitution authorizes the president to adjourn both chambers “to such Time as he shall think proper.” If House Speaker Nancy Pelosi were amenable, she could propose to the Senate a 10-day period of adjournment, which would be long enough to enable recess appointments. The Senate likely would disagree in order to block those appointments. But that refusal would trigger the president’s adjournment power. With the Senate adjourned for at least 10 days, an entire cabinet and its principal deputies could be appointed.

In 230 years, the adjournment clause has never been used. But earlier this year, the Trump administration was known to be mulling this technique. The conservative administrative law scholar Adam J. White wrote in opposition, arguing that the adjournment power could close down Congress for no more than three days at a time. White’s willingness to buck Trump is admirable, but his analysis is hardly conclusive. The only textual limit placed on the president’s power is the requirement for House-Senate disagreement—and the power granted is not for three days, but for whatever time the president thinks fit. For four years, congressional Republicans, along with Trump’s Justice Department, have argued for reading Article II’s executive powers as generously as the Framers’ words permit. (Miguel Estrada, an icon of the conservative legal movement, argued to the Supreme Court for an expansive reading of the clause as recently as 2014, and the Court, in passing, approved his reading.) During the founding era, the adjournment power elicited virtually no debate. Its actual purpose is obscure; it seems to be a kind of truncated holdover from the Crown’s power to “prorogue,” or dissolve, Parliament. But if Biden wants to play hardball, this clause offers a potentially big bat with which to threaten the opposing team.

Undoing Trump Policies

It will be no small challenge for the Biden White House to populate key positions throughout the executive branch with personnel sympathetic to the new president’s agenda. There is evidence already of some of Trump’s political appointees “burrowing in”—that is, moving from political positions to what are technically senior civil service positions, which will make them more difficult, though not impossible, to remove. Biden will not need his team fully in place, however, to start undoing the Trump administration’s public policy moves.

To begin with, a number of last-minute Trump administration regulatory moves are likely not to have become legally effective by January 20. The Biden White House will thus follow a practice adopted by every incoming administration marking a change of party since Ronald Reagan succeeded Jimmy Carter. On January 20, there will be a White House directive to administrative agencies to halt not-yet-final Trump regulations in their tracks. Rules not yet sent for publication will be held in abeyance at each agency. Rules sent for publication but not published will be withheld from the publication that would have finalized them. Rules published but not yet at their effective date will be temporarily postponed while the issuing agency considers their withdrawal. In addition, if Georgia’s Democratic candidates win the two Senate seats to be decided in early January, Congress could help Biden by using the Congressional Review Act to void Trump regulations that became final as early as last summer.

Besides formally issued agency regulations that bind the public, a certain amount of what Trump tried to accomplish took the form of presidential executive orders. “Executive orders” come in two varieties. Some are based solely on the president’s constitutional power to manage the executive branch and assign powers within it. Their terms do not directly bind the public. Examples include an early Trump executive order attempting to impose strict limits on the volume of administrative agencies’ regulatory output; orders urging agency action to undermine Obamacare; and an order that the Environmental Protection Agency (EPA) consider rescinding or revising the Obama administration’s clean water rule.

A second kind of executive order is specifically authorized by statute and may directly affect the public’s legal rights or obligations. Perhaps the best-known example is Trump’s travel ban order, which implemented the president’s statutory authority to restrict the entry of aliens whenever they find that their entry “would be detrimental to the interests of the United States.”

What both kinds of executive orders have in common, however, is that they can be rescinded by a subsequent executive order without any prior process. On day one, President Biden could issue an executive order simply repealing each and every Trump executive order he regards as bad policy.

With regard to the rules issued by administrative agencies, such as the EPA, the DHS, and the like, turning the page is sometimes easy, sometimes difficult. The regulations that order public behavior are called “substantive rules.” Most often, agencies can impose substantive rules only after following a lengthy promulgation process, which involves issuing a “notice of proposed rulemaking,” allowing a period for public comment, developing a detailed explanation of the rule to take account of the public comment, publishing the final rule, and then waiting a period of time—usually 60 calendar days—for Congress to review the rule.

Substantive rules—such as Trump’s rollback of clean water protections or scaling back the safeguards of the Endangered Species Act—are the hardest ones to change. That’s because rescinding or even amending a substantive rule counts as a new substantive rule—and probably has to undergo the same process. There is, however, some leeway. First, substantive rulemaking has been slowed since the 1980s by a Reagan-era presidential requirement further elaborated during Bill Clinton’s presidency that agencies seek approval of their regulatory cost-benefit analyses from the Office of Information and Regulatory Affairs at the Office of Management and Budget. Those analyses can prolong rulemakings by months. The Biden administration could lighten or remove this consultation obligation.

Second, if an agency has what Congress has defined as “good cause,” it can make a rule effective as soon as it publishes its notice. This process is called “interim final rulemaking.” The agency still has to go through public comment and the other steps, but the rule will be binding even before that procedural gauntlet is run. If a Biden administration agency has good reason to think that delay in revising a Trump rule would be (in the words of the Administrative Procedure Act) “impracticable, unnecessary, or contrary to the public interest,” it could consider an interim final rule.

As it happens, however, a lot of the rules that agencies issue do not actually impose new legal obligations or remove existing ones. They are thus not substantive rules. Instead, they are sometimes policy statements that just inform the public of an agency’s likely administrative priorities. Others take the form of so-called interpretive rules, which purport merely to explain or clarify the legal obligations that exist already under the agency’s governing statute or under substantive rules the agency has issued earlier. Policy statements and interpretive rules are frequently called “guidance”; guidance can be revised or even repealed with the stroke of a pen. It requires no elaborate procedure to promulgate—or to change.

For example, as secretary of homeland security, John Kelly issued a policy statement on February 17, 2017, setting forth DHS priorities in the removability of undocumented aliens. It replaced a far more nuanced policy statement issued by his predecessor, Jeh Johnson. For example, the Johnson policy prioritized removal of persons convicted of serious offenses; Kelly prioritized removal of persons charged with criminal offenses, whether or not convicted and whether or not serious. No procedural constraints delayed Kelly’s jettison of the Johnson policy. No procedural constraint would delay its resurrection.

In sum, Biden will take office with a robust set of tools available to reverse course on policies adopted by the Trump administration that too often worked against the public interest. The swiftness with which he acts will no doubt unleash Republican accusations of Biden turning into a Trump-like would-be authoritarian. In fact, many of the tools are utterly routine and well rooted in long-standing administrative and constitutional law. But if a GOP-controlled Senate decides to escalate its resistance to norms of interbranch comity, Biden will have norm-shredding moves of his own available to him. Perhaps awareness of their existence will induce Republicans to retreat from the brink.

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