“I am going to be working with Congress where I can to accomplish this, but I am also going to act on my own if Congress is deadlocked. I’ve got a pen to take executive actions where Congress won’t, and I’ve got a telephone to rally folks around the country on this mission.” – President Barack Obama, January 20, 2014
“Whereof what’s past is prologue; what to come, in yours and my discharge.” Shakespeare, The Tempest, Act 2, Scene 1
Overview – Here we go again. The pattern is a familiar one: a President’s agenda gets bogged down in Congress, and he and his aides get anxious. And so does his party. Executive anxiety then turns into executive action. This is true for Democrats and Republicans.
These actions can take many forms: executive orders, proclamations, rulemakings, guidance documents, bulletins, policy statements, and bureaucratic enforcement. With Build Back Better, or its remnants, languishing in the shadows, with no clear resolution in sight, expect the President’s regulatory machinery to kick into high gear.
Give the House Progressive Caucus credit: they know where power resides in Washington. And a considerable amount of it lies with their compatriots in agencies that run the federal government. Recently, House Progressives released a list of 55 recommendations for executive action. As you would expect, these include policies on just about everything under the sun: energy, climate change, health care, immigration, COVID-19, student loans, and police and judicial reforms.
They may have found a receptive audience in President Biden. In 2021, President Biden issued 77 executive orders, compared with 55 by President Donald Trump in his first year and 38 by President Barack Obama. Expect more in this vein this year and next, especially if Republicans regain control of Congress. This inevitably means regulatory activity will accelerate and accumulate.
There are reasons for this beyond the mere exercise of power. Democrats know they need a record of accomplishments for campaigning this fall. Rep. Alexandria Ocasio-Cortez (D-NY) summed it up best: “If the president does pursue and start to govern decisively using executive action and other tools at his disposal, I think we’re in the game. But if we decide to just kind of sit back for the rest of the year and not change people’s lives — yeah, I do think we’re in trouble.”
For now, Republicans have scant leverage to stop or slow the onslaught of rules and regulations that will define the next few years. But if, as many expect, they hold committee gavels next year, then oversight will become the principal means by which to savage the bureaucracy’s best laid plans. It will be a target-rich environment: there are currently 62 proposed rules pending at the Office of Information and Regulatory Affairs.
Those rules are carried out by actual people. As the time-honored adage (attributed to President Ronald Reagan’s personnel director in 1981) goes, “personnel is policy.” That’s why Republicans have targeted the nomination process—and so far, to great effect—and why the Biden Administration is racing to get as many nominees confirmed before the November elections.
To date, Senate Republicans’ success in blocking particular nominees stems from their ability to stick together. This has had the concomitant effect of pressuring moderate or vulnerable Democrats to follow suit. Republicans saw this work last week with David Weil’s nomination for the Department of Labor, which was scuttled by Sens. Mark Kelly (D-AZ), Joe Manchin (D-WV), and Kyrsten Sinema (D-AZ). Sarah Bloom Raskin’s nomination to the Federal Reserve was opposed by Sen. Manchin; Saul Omarova’s nomination to head the Office of the Comptroller of the Currency was opposed by Sens. Sinema, Kelly, Jon Tester (D-MT), Mark Warner (D-VA), and John Hickenlooper (D-CO).
Is this the sign of a growing trend? We don’t know. There’s certainly precedent for members of the President’s own party to withhold support for nominees to gain leverage on issues they care about. For now, it seems some Senate Democrats are becoming less concerned about defying White House picks for certain agencies. As the election draws closer, it will be interesting to see if in-cycle Democratic senators gain more influence over President Biden’s personnel picks.
This Week and Next Work Period – With the longest work period of the year wrapping up, the last two major items Senators are racing to complete are the nomination of Judge Ketanji Brown Jackson to the Supreme Court and additional funding for COVID spending. Sens. Mitt Romney (R-UT), Susan Collins (R-ME), and Lisa Murkowski’s (R-AK) vote in support of discharging Judge Jackson’s nomination from the Senate Judiciary Committee yesterday indicated she is on a glide path to confirmation by the end of the week. Senate negotiators also stuck a deal for $10 billion in additional COVID spending with Senators receiving a full readout of the legislation at both the Democratic and Republican policy lunches today. Senators will have to be whipped on their position to see if 60 votes can be achieved. Several Republicans are not impressed. The House Republican Study Committee was quick to tweet out, “So COVID is still a big enough threat that we need $10 billion in funding, but not big enough to keep Title 42 in place at the border?” Senate Republicans are expected to demand a vote on Title 42 provisions covering migrant expulsions. As with every looming recess, many members are eager to have their CODEL’s and travel back home occur on time, so it remains to be seen if a time agreement for expedited consideration can be made in the coming days.
Meanwhile, members of both parties are planning for activities when Congress returns at the end of the month. Convening the conference committee for the China competitiveness bill will be front and center. Note this is the first formal conference committee on a multi-committee bill that we can remember. This means conferees, especially those who’ve never been part of such a process, will have to adjust on the fly. This could add time and complexity to an already difficult situation.
One thing to watch for in the early going: several motions to instruct (MTI) conferees. Sen. Bernie Sanders (I-VT) has already secured Senate Majority Leader Chuck Schumer’s (D-NY) commitment to hold votes on two of his MTI’s dealing with government warrants and equity stakes in microchip companies and targeting funding for Blue Origin’s moon landing program.
Republicans are debating how many MTIs they may wish to advance, with the goal of highlighting their various issues with China. Last week, House Republicans pushed an MTI to recede to the Senate position on the prohibition of any U.S. taxpayer dollars going to individuals and companies affiliated with the Chinese military.
Finally, Leader Schumer is also hopeful that legislation related to insulin prices can advance on the Senate floor. At the same time, as noted above, he needs to manage the growing heap of nominees on the executive calendar. Nominees for the Federal Reserve Board and the Federal Communications Commission are some of the high-profile positions that are primed for Senate floor consideration next work period if not completed this week. Also, the Senate and House Armed Services Committees are expected to begin drafting their respective versions of the fiscal year 2023 National Defense Authorization Act.