With Congress Stacked Against Him, Biden Prepares for First Hundred Days

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Speaking before a crowd of car-bound supporters Friday, Joe Biden told them and the nation that the results of the presidential election amounted to a mandate—”a mandate for action on COVID and the economy and climate change and systemic racism.”

The president-elect has already moved on this claimed mandate, launching a transition website, vetting candidates for his cabinet, and announcing Monday a task force to combat the ongoing coronavirus pandemic. In the coming days and weeks, he and his team will lay the groundwork for the expansive agenda outlined during the campaign—one that would make Biden, in the words of surrogate Sen. Bernie Sanders (I., Vt.), the “most progressive president since FDR.”

But Biden’s grandiose vision is likely to run up against electoral reality. After a series of losses last Tuesday, Democrats hold a razor-thin margin in the House, while control of the Senate will likely be decided by two runoffs in Georgia, where Democrats face an uphill battle for their last hope of claiming the upper chamber. Plans such as a public health care option or a $2-trillion climate package may not survive House blue dogs, never mind a reinstalled Senate majority leader Mitch McConnell (R., Ky.).

That leaves the pivotal first hundred days of a Biden administration up in the air. The new president, a Senate veteran, may find a way to collaborate with McConnell, though that will likely mean paring down his agenda and keeping arch-progressives like Sen. Elizabeth Warren (D., Mass.) out of his cabinet. Or Biden could, like Democratic predecessor Barack Obama, rule by executive order alone, undoing President Donald Trump’s immigration enforcement regime wholesale and implementing a swath of climate change rules without the assent of Congress.

Here’s a closer look at what to expect in the opening days of the Biden administration.

Legislation

With unemployment still elevated and a vaccine still unreleased, Biden’s number-one legislative goal, campaign policy director Stef Feldman told the Washington Post in July, is the coronavirus: “The top priority will be getting the virus under control and passing an economic recovery bill.”

Biden’s task force announcement indicates that he plans to hit the ground running on the issue come Jan. 20. Absent congressional action in the lame-duck session, Biden will likely also return to stalled negotiations over a renewed round of coronavirus stimulus. Such negotiations may meet the same barrier that President Donald Trump has, namely the yawning gap between what House Democrats demand and what Senate Republicans are willing to pay for.

Biden has floated a comprehensive coronavirus response plan, but congressional dynamics may impede another large stimulus similar to the CARES Act. Biden may get further with proposed targeted investments in testing, PPE, and vaccine production, none of which are the source of Congress’s stalemate. Biden has also signaled interest in a “national mask mandate,” although he has been cagey about what that would look like in practice.

A coronavirus stimulus may take up all of Biden’s first three months, but he will likely also angle to lay the groundwork for other legislative pushes. Likely priorities include his promised expansion of Obamacare, which will have a public option, and his $2 trillion climate plan. Biden also said in the days leading up to the election that he wants to sign the Equality Act, which would expand federal anti-discrimination protections to include sexual preference and gender identity and which conservatives worry could impinge on religious conscience rights.

All of these priorities, however, depend on the balance of the Senate. Democrats will need to win both runoff races in Georgia (or, even less likely, the still-outstanding race in Alaska) to clinch a 50/50 count, with vice-president-elect Kamala Harris breaking ties. Losses in Georgia would likely make any of the aforementioned big projects a nonstarter in a GOP-controlled chamber.

Even if Democrats take the Senate, however, they’ll need to overcome its 60-vote filibuster threshold—or, as many have proposed, abolish it, which Biden has indicated he is open to. As part of a push for “reform,” Democrats are also likely to pursue a voting-rights bill such as H.R. 1, which would overhaul much of the U.S. election system, or H.R. 4, which would reinstate federal pre-clearance requirements for states to change voting rules. Biden has signaled he supports such legislation.

He may be more skittish, however, about other ideas, such as adding Puerto Rico and Washington, D.C., as states or offsetting conservatives’ six-three majority on the Supreme Court by appointing additional justices. Biden has spent weeks scrupulously avoiding the question of whether he supports packing the Court, but congressional progressives may seek to force his hand.

Executive Actions 

While a split Congress may stymie Biden’s legislative goals, the president-elect has promised to use his executive powers broadly in pursuing his policy agenda. Much of that agenda, it turns out, involves rolling back Trump’s executive orders—which themselves were often undoing Barack Obama’s actions.

Much of the Trump administration’s immigration policy, for example, has been implemented by executive orders that Biden has promised to undo swiftly. A Biden DHS would end the requirement that asylum seekers remain in Mexico, cut back substantially on immigration detention, end the prosecution (and separation) of adults who bring minors with them to cross the border, end Trump’s expansion of the public charge rule, reinstate DACA, end travel bans, and end ICE’s raids on workplaces. The cumulative effect would be a far less deterrent immigration system, which could spark another migration wave of the sort seen in 2014 and 2019.

Biden has also promised a “series of new executive orders with unprecedented reach” aimed at slashing carbon emissions to zero by 2050. Those would include “aggressive” methane limits, targeted prosecutions of energy companies, and a ban on drilling in the ANWR reserve. Biden has separately said he will work to protect 30 percent of U.S. lands and waters by 2030. All of the potential orders indicate an administration more interested in conservation than productivity.

The Cabinet

The balance of the Senate will be particularly critical in determining the composition of Biden’s cabinet, which will be pulled between the Democratic Party’s progressive and moderate wings and stymied by Republicans. Biden’s campaign has signaled that its white, male, septuagenarian nominee expects to bring a “diverse” coterie with him—but longtime Biden consiglieri are likely also to get spoils.

A key bellwether is Biden’s pick for secretary of the Treasury. Sen. Elizabeth Warren (D., Mass.) is reportedly pushing for the post, where she could further shape Biden’s economic agenda. But Warren’s appointment is unlikely to fly with a Majority Leader McConnell, and she faces the additional hurdle of knowing that Republican Massachusetts governor Charlie Baker will chose her replacement in the Senate.

As with other proposals, then, reality may eliminate Biden’s most progressive options. One popular “moderate” alternative is Lael Brainard, who has staked out the left flank of the Federal Reserve’s board of governors. Another is Sarah Bloom Raskin, a former deputy Treasury secretary and wife of Rep. Jamie Raskin (D., Md.) who is perceived as a more progressive pick.

At the Department of Defense, one top name is former undersecretary Michèle Flournoy, who would be the first woman in the post and who has already raised the hackles of isolationists. At the State Department, one frontrunner is former deputy national security adviser and Biden confidant Tony Blinken, who could also end up as national security adviser. Another option on the table is former national security adviser Susan Rice, a runner-up for Biden’s V.P. slot who was thought to be unconfirmable as Obama’s secretary of state because of her involvement in the Benghazi scandal.

Rounding out the big four cabinet slots, reporting has indicated that top names for attorney general include former Georgia speaker of the house Stacey Abrams (D.), former acting attorney general and #resistance darling Sally Yates, and New York governor Andrew Cuomo (D.), although Cuomo has denied any interest in the spot. Both Yates and Abrams would likely face uphill battles in a GOP Senate, however, clearing the way for options such as outgoing Sen. Doug Jones (D., Ala.).

Other positions are less clear, although rumors include Los Angeles mayor Eric Garcetti at HUD or Transportation and former secretary of state John Kerry as a new cabinet-level “climate czar.” Biden surrogate and former South Bend, Ind., mayor Pete Buttigieg is also expected to be offered anything from U.N. ambassador to Veterans Affairs secretary—positions that would boost his national profile in advance of another presidential run.

Biden is likely to bring a number of supporters along with him to the White House. Longtime adviser Ron Klain is looking to reprise his role as Biden’s chief of staff, while Sen. Chris Coons (D., Del.), whose seat would be filled by Democratic governor John Carney, is thought to be a possibility at State. And former economic adviser Jared Bernstein, whom the Atlantic called Biden’s “man on the left,” is in contention for a main economic-policy role.