In 2016, Donald Trump won 3 million fewer votes than his opponent and was seen by a great deal of voters as not merely unlikable, but actively dangerous and horrifying. Yet mediocre turnout and an Electoral College inside straight handed Trump the presidency.
Trump proposed to the Senate a Cabinet built in his own image: inexperienced, unqualified, ideologically extreme, and aligned with the wants of corporate elites. Hence Energy Secretary Rick Perry, who literally didn’t understand his department’s agenda and opposed its existence; Education Secretary Betsy DeVos, a lifelong opponent of public education with no government experience; Housing and Urban Development Secretary Ben Carson, an anti–public housing surgeon; on and on it went. Senate Majority Leader Mitch McConnell, like his whole caucus, tied his political future to Trump and confirmed this Cabinet of unqualified ideologues posthaste.
In 2020, campaigning through unprecedented crises and against an opposition party dead set on disenfranchising as many Americans as possible, Joe Biden still managed to win both the presidency and the largest popular vote mandate in American history. But barring a difficult clean sweep in a pair of Georgia Senate runoff elections, Republicans have already signaled that McConnell thinks he will wield veto power over Biden’s Cabinet nominees.
McConnell has done more than any human being in recent history to destroy Senate bipartisanship entirely, transforming American politics into a naked war for power. Most infamously, McConnell prevented Barack Obama’s final Supreme Court nominee, Merrick Garland, from even receiving a confirmation hearing, much less a vote, in 2016, calling it improper to do so in an election year. He subsequently jammed Amy Coney Barrett onto the court mere weeks before the 2020 election. Imagine the Garland fiasco, but for a full 15 Cabinet secretaries, plus more than 1,000 additional Senate-confirmed appointees. This is what Biden could be up against merely to build a functioning executive branch.
In McConnell, Biden likely faces an opponent ideologically hellbent on sabotaging any government led by someone with a “D” next to their name. McConnell has had ample opportunity to address COVID-19, its accompanying recession, climate change, and other crises facing the country. His inaction speaks for itself.
Biden can, though, simply refuse to play McConnell’s game if he wants. In contrast to Supreme Court vacancies, there are two separate alternative strategies for filling out the executive branch without making the leader of the wildly undemocratic Senate a functional co-president. They are the Vacancies Act and the recess appointment clause of the U.S. Constitution.
The Vacancies Act has been used frequently by presidents of both parties to ensure that the president actually gets to execute the duties of the office to which he was elected. President Donald Trump almost made a sport of using the act to appoint “acting” officials, including two in the current Cabinet. It allows a new president to choose from two groups of people to serve as “acting” secretaries: either any Senate-confirmed official (including dozens of sitting Democrats serving as commissioners at multimember agencies) or any senior civil servant who has served in that agency for 90 days and is paid at the GS-15 level or above. Acting Health and Human Services Secretary Anthony Fauci sounds good, right?
The recess appointment clause, meanwhile, allows presidents to install “acting” officials while the Senate is in adjournment for at least 10 days. It too has been used regularly in the recent past: George W. Bush made 179 recess appointments, 99 of which were to full-time positions. Moreover, Biden can force the Senate into recess if McConnell attempts any blockade of his Cabinet. Under the Constitution’s presidential adjournment clause, if the Senate and House cannot agree on whether or not to adjourn, the president can adjourn Congress “for such time as he shall think proper.” With an allied speaker of the House, Biden can instigate an adjournment standoff, resolve it, and make his appointments in the interim.
These steps are not preferable to regular order in a Senate. Even the savviest practitioner of the Vacancies Act and recess appointment powers may well end up needing two individuals to fill each job within a four-year presidential term. And these officials will lack the gravitas accorded by full confirmation.
This plan B is, though, undoubtedly preferable to the alternatives if McConnell tries to play hardball. At the very least, it can be wielded as a stick to try to force him to back down from any attempted obstruction.
Without the threat of plan B, McConnell might concede some confirmations after extracting a few pounds of flesh, but any such appointees would definitionally have been blessed by a man who giddily blocked economy-saving action during the last collapse, in service of “making Obama a one-term president.” In other words, any nominees who would appease McConnell cannot be expected to have Biden or the American people’s best interests in mind. They would serve only the Wall Streeters, fossil fuel barons, military contractors, tech monopolists, and other corporate elites lobbying Biden on their behalf.
Alternatively, Biden could fill these roles with experienced, dedicated civil servants who care about the public interest. He will already have the power to do so on day one of his presidency.
Acting officials can ensure that Biden fulfills his mandate and launches a transformative agenda, no matter McConnell’s bad-faith maneuvers. An acting treasury secretary could oversee CARES Act implementation—perhaps even funding a massive investment program using monies that have already been appropriated by Congress. An acting secretary of defense could ensure Defense Production Act appropriations go to provision of personal protective equipment, not jet engine parts. They could even lay down the infrastructure for an eventual vaccine’s distribution. An acting secretary of health and human services can dispel fears about an unsafe vaccine approved for the sake of political expediency, by putting the public health experts front and center again. An acting secretary of education can unshackle tens of millions of Americans from student debt peonage. An acting attorney general can prosecute corporate corruption (e.g., Big Pharma), resuscitate civil rights laws, and enforce antitrust laws to help ensure the recovery from the current crisis doesn’t enable corporate acquisitions and exacerbate inequality.
Biden was elected by 78 million Americans and counting because they wanted a government that actually reflects their will and addresses their needs—most immediately, a resolution to the pandemic and accompanying economic woes. Whether or not the Senate cooperates, Biden will have tools to make good on many of his key promises.
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