While I’ve been criticizing state and local institutions for their failures in governance–and the opportunities those failures create for bad actors–there also have been substantial failures at the federal level, including President Obama’s term (the left, construed very broadly, needs to come to terms with this). Given that the best case scenario for 2020 is that Democrats control the House and the Senate, with the Senate majority including several conservative Democrats (you’re going to hear a lot about Democratic Senator Kyrsten Sinema, and you won’t like it…), if Democrats take back the White House, a Democratic president is going to have to figure out how to govern from the Oval Office through regulation. This is one reason why I’m backing Warren over Sanders, because I think she understands this and would be willing to do it, while I’m not unsure Sanders does (could be wrong though!).
This brings us to something David Dayen wrote (boldface mine):
A president has a thicket of checks and balances to maneuver through. But America has also been passing laws for over 232 years, and buried in the U.S. Code are the raw materials for fundamental change. It doesn’t take Green Lantern’s ring to unearth these possibilities, just a president willing to use the laws already passed to their fullest potential.
The Prospect has identified 30 meaningful executive actions, all derived from authority in specific statutes, which could be implemented on Day One by a new president. These would not be executive orders, much less abuses of authority, but strategic exercise of legitimate presidential power.
Without signing a single new law, the next president can lower prescription drug prices, cancel student debt, break up the big banks, give everybody who wants one a bank account, counteract the dominance of monopoly power, protect farmers from price discrimination and unfair dealing, force divestment from fossil fuel projects, close a slew of tax loopholes, hold crooked CEOs accountable, mandate reductions of greenhouse gas emissions, allow the effective legalization of marijuana, make it easier for 800,000 workers to join a union, and much, much more…
I keep sensing an undercurrent of despair when talking to liberal partisans about the election, a sigh that beating Trump is not enough but all that can be done. Yes, Democrats are only an even-money shot, at best, to flip the Senate. And yes, even if they succeed, Mitch “Grim Reaper” McConnell can obstruct the majority with the filibuster, and it would not be up to the next president, but the 50th senator ideologically, someone like Joe Manchin or Kyrsten Sinema, to agree to change the Senate rules to eliminate the 60-vote threshold for legislation. (There’s always budget reconciliation, but that limited path goes through the same conservaDems.)
…The U.S. government is one of the world’s largest purchasers of goods and services. This alone gives presidents widespread power to influence the economy by setting benchmarks for federal contractors to deliver high minimum wages, pay equity, safe workplaces, and shared prosperity. The government can even stop doing business with distasteful companies that rely on federal contracts, like the private-prison industry.
The government also manages giant swaths of public land, and can choose to open it up to development and fossil fuel production, or shut that down. And there are all sorts of statutory programs where presidents get to set the rules. When President Kennedy in 1962, after much prodding and delay, fulfilled a campaign promise to prohibit discrimination in federally aided housing, all it took was the proverbial “stroke of a pen.”
As Trump has repeatedly shown, in entire issue areas like foreign policy and immigration and global trade, the next president would have expansive authority, all granted by a plain reading of the Constitution, specific congressional statute, or the legislative branch’s studied deference. Who the next president chooses for the Federal Reserve Board will define the course of economic policy.
Presidents can make regulatory decisions like who qualifies for overtime pay. They can decide who serves as a worker’s employer, a critical determination for collective bargaining. They can choose whether corporations should still enjoy a “safe harbor” to facilitate stock buybacks that enrich investors at the expense of workers. They can’t bring forth Medicare for All, but they can use Section 1332 waivers from the Affordable Care Act to enable single-payer programs at the state level, and potentially use nearly $1 billion from the ACA’s Prevention and Public Health Fund to defray startup costs.
Once you start thinking about the possibilities, it’s hard to stop. Statutory language is sometimes clear and sometimes muddled, but regulatory discretion is almost always broad. What a president chooses to emphasize, and how much the letter of the law can be bent to their preferences, makes a huge difference…
There’s a difference between control and power. Democrats like to take control; doing something useful while in control has been a different proposition. Barack Obama had to be browbeaten into protecting Dreamers with DACA, or showing his support for same-sex marriage. Too many Democrats still live in a perpetual defensive crouch, afraid to make policy for fear that somebody might not like it. They crave approval rather than progress.
It won’t be as much as we would like, but it would make a difference–and the conservative outrage would likely make these policies noticed more–which is a good thing. Left-ish Democrats are going to have to learn how to govern without a majority.