The transition from candidate to president provides critical clues as to how he is likely to rule. Above everything else, politics is a team sport. Therefore, the first tells of a president-elect’s hand is who he reaches out to as personal staff and those being considered for cabinet positions. The experience of the various candidates can say a lot about the priorities being placed on multiple issues.
The best presidents may not be the smartest in a bookish sense—neither are they necessarily the ones with a strong sense of self. High marks are to be given to a president who under-stands his strengths and weaknesses and is not threatened by staff who may be smarter than them on different issues. No single person can manage the federal bureaucracy.
This is the first article of an occasional series that puzzles out for readers whether and how the President-Elect intends to make good on the Biden plan for a clean energy revolution and environmental justice within today’s political context. It begins with a story of conflict between a president with the most progressive policy agenda since Frank Roosevelt and a Republican Senate majority looking to keep the Senate and capture the House in the 2022 midterm elections.
Enter Republican Senate leaders—stage right.
For a troop of Senate Republicans refusing to acknowledge Joe Biden’s election as the 46th president, they are not in the least bashful declaring what policies and people they will and won’t consider at the outset of the Biden era.
Three days after the election, Senator Lindsey Graham (R-SC) told the New York Post that:
Joe Biden “deserves” to have his cabinet picks confirmed by the Senate…while vowing to find “common ground” if the Democrat wins the presidency.
A fine statement by the same senator who invited anyone to use his words against him should he even think about confirming a supreme court justice in the final year of a president’s term in office. This time Graham didn’t wait four years to qualify his statement. He did so during the same press conference.
On the issues, Graham said he would oppose the Green New Deal, Medicare for All,
and packing the Supreme Court.
Graham was not alone in speaking up about what Biden should expect from a Republican controlled Senate. Other members of Graham’s cabal joined with him in warning the Presi-dent-Elect they would never confirm Senators Warren (D-MA) as Treasury Secretary nor Senator Sanders (I-VT) as the Secretary of Labor.
Senate Republicans are not the only ones making threatening statements about what the President-Elect better do--or else. Progressive organizations like the Sunrise Movement and Justice Democrats are reminding Biden that they expect a quid for their pro quo. Unlike the 2016 election, progressives—particularly young progressives—came out in large numbers to get the Democratic nominee elected.
The President-Elect has consistently touted his commitment to science and the environment—promising to be the climate president. The group Climate President.org has reminded the Biden of the ten-step plan they released a year ago and now expect to be accomplished.
Endorsed by over 200 climate defense organizations, the ten-step plan focuses exclusively on actions they believe a president can take without congressional involvement. In part, the plan directs the President-Elect to:
The groups are technically right about the steps; a president acting alone could accomplish them—but only in an ideal world. Today’s world is far from ideal. What will stop Biden from completing his honey-do-or-I’m-leaving-you-list is a combination of politics and lawsuits.
Take, for example, the Paris climate agreement. Yes, Biden could sign the nation on the agree-ment just as Obama did. However, the signing would rekindle a battle with Republicans over whether the accord is actually a treaty. Treaties are subject to Senate approval by a two-thirds vote. It’s the same constitutional issue as Obama faced.
What about stopping the leasing of federal lands to fossil fuel interests? It is probably possible going forward. However, there are significant legal questions about retroactively banning drilling or fracking on federal lands by companies already granted the license to do both.
The legal questions of past leasing transactions have to do with property rights and contract law. Again, technically, the government may have a leg to stand on claiming sovereign rights. But seriously—would this or any of the hundreds of other legal challenges that will be made to regulating the environment by fossil fuel companies and red state attorneys general over the next four years get through the courts before Biden’s term is up?
The Climate President coalition is far from the only group reaching out to the Biden transition teams to let them know that bills are coming due now that the election is over.
Collaborative groups like Stop the Money Pipeline (STMP) have check lists they want the Biden administration to follow when considering his nominees. STMP lists 130 organizations as allies in their efforts. The number includes many of the same groups appearing on the Climate President list of supporters.
STMP states the Biden administration should only put forth appointees who, among other things:
STMP doesn’t want to see anyone who:
In addition to character and professional qualifications, 40 progressive organizations have released a list of 400 candidates for sub-cabinet positions throughout federal agencies and departments. The organizations characterize the effort as focusing on the most powerful positions nobody’s ever heard of to achieve parts of progressive programs like the Green New Deal without requiring Senate approval. The folder, prepared by the Progressive Change Instit-ute, was labeled Volume 1—suggesting there will be a Volume 2.
Could the demands of the Senate Republican caucus and progressive advocacy
Groups be any more in conflict?
President-Elect Biden and Vice President-Elect Harris will need every bit of their collective political experience to negotiate between the conflicting sets of demands if they expect to fill the 1,200 executive-level jobs appointed by the president with the advice or consent of the Senate. Beyond these jobs are another 2,800 appointed positions that do not require Senate action.
The importance of Georgia’s two runoff Senate races on January 5, 2021, becomes crystal clear when assessing how much the Biden administration can realistically accomplish over the next four years. Winning both Senate races in January will strengthen Biden’s hand—but only to a point.
Democrats exhibited remarkable unity throughout the 2020 election cycle. What made the very diverse interests willing to put aside their differences was in a word--Trump! Now that he’s been defeated, the many interests under the Democrat’s big tent are falling back to pursue their individual policy priorities—some of which overlap while others are in opposition.
Biden is the first president since George H. W. Bush to come into office with a Senate controlled by an opposite party. The Democrat’s failure to win the Senate and the losses they sustained in the House place the President-Elect in a compromising position.
It’s a position having huge ramifications in terms of Biden’s ability to build-out the federal bureaucracy. Trump has mercilessly whittled the ranks of career federal officials in many of the federal agencies responsible for implementing climate-related policies, i.e., energy, envi-ronmental, natural resources, agriculture, and high-risk, long-term research.
Progressive groups are showing their Washington savvy by encouraging Biden to make temporary appointments lasting 200 days. They cite the Vacancies Act (Act). The Act allows [recess] appointments to executive agency positions otherwise subject to Senate review when Congress is out of session.
Trump has used this technique to circumvent Senate review and pack federal agencies with his loyalists. He also relies on it to keep appointees dependent on his largesse and continued goodwill.
Progressive organizations, e.g., Demand Progress and The Revolving Door Project, are urging Biden to exercise his executive powers as provided by the Act. Former Obama chiefs of staff are echoing the call. Denis McDonough has reminded the transition teams that:
There is — as President Trump himself has demonstrated with the consent, quite obvious consent of Re-publicans in Congress — an enormous amount of leeway for the president to institute executive action on things like immigration and energy and climate policy. (emphasis added)
Who would cry foul should Biden use the same tactics on Trump that he used on the Democrats over the past four years? Who, indeed, Senators McConnell and Graham? However, the intricacies of the Act should give the new administration pause. The limitations of the legislation can be significant.
For example, someone given an interim appointment cannot be the same person as the one ultimately nominated for the position. If President Biden wanted to appoint Gina McCarthy, a former EPA administrator, to take the helm at EPA, he would have to choose someone else as the interim appointee.
There are also rules of succession, which could require firing or moving senior civil servants. The Trump administration’s latest attempt to undo the Deferred Action for Childhood Arrivals (DACA) program was rebuffed by a federal judge based on its failure to follow the Vacancies Act when it appointed Chad Wolf the Acting Secretary of Homeland Security. Because Wolf wasn’t legally in the position of Acting Secretary, any order he issued on the DACA programs was invalid.
I want to be clear that I’m not suggesting that following the progressive path shouldn’t be done. What I am saying is that expectations may have to be reined in for practical reasons. As Obama and Trump found out, a president can’t get everything he wants through executive order. Beyond their vulnerability to an incoming president, they are subject to judicial review. With a newly conservative 6 to 3 US Supreme Court, executive actions need to be viewed through a textualist lens.
It’s critical for Democrats not to overplay their hands. Trump lost with over 72 million votes. Until a significant portion of those voters can be convinced climate change is the problem most mainstream scientists claim, building the nation’s defenses against Earth’s warming on an entirely executive platform is, at best, a temporary solution and, at worst, contributes yet more chaos.
This work is licensed under a Creative Commons Attribution 4.0 International License.
Joel B. Stronberg
Joel Stronberg, MA, JD., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.