There was a moment this summer when Joe Biden’s promise to deliver an “FDR-size” presidency was almost credible. Desperate to shore up his support from dejected Bernie voters and galvanized by Covid-19 and the cratering economy, Biden seemed to embrace, if somewhat sheepishly, a more transformative agenda. His platform featured huge expansions of the welfare state, an ambitious climate plan, legislation to fuel unionization, and a major public sector role for job creation. If you had squinted—and I mean really squinted—Bidenism looked a bit like social democracy in centrist’s clothing: Copenhagen by way of Scranton.
Now summer feels far away. With Republicans maintaining control of the Senate (pending two runoffs in Georgia), there are signs that Biden might use divided government as an excuse to narrow his vision, play ball with the GOP, and appoint CEOs, high-level consultants, and corporate lobbyists to key Cabinet posts. Earlier this month, Biden insiders leaked a preemptive surrender to Axios, indicating they would “consider limiting prospective Cabinet nominees to those Mitch McConnell can live with.” On Tuesday, the campaign released a list of advisers to help with the transition at the Office of Management and Budget; it included execs from Amazon, Lyft, and Airbnb.
This has happened before. In 2008, people of color, liberals, and union members powered Barack Obama to victory, only for him to fill his Cabinet with bankers, Wall Street–friendly lobbyists, and moderates who sabotaged a more aggressive response to the financial crisis and sanded the populist edges off Obama’s powerful campaign message. “We were flat-footed during the transition, and that’s when the die was cast,” said David Segal, executive director of Demand Progress, a left group focused on combating corporate and monopoly power. “This time is different. We’re watching. We’re mobilized. We can’t let this White House be staffed by the same plutocrats.”
Segal and a growing number of activists on the left are calling on Biden and the Democrats to use hardball tactics, like those embraced by Senate Majority Leader McConnell over the last four years, to staff the executive branch with liberal allies—using recess appointments and the Vacancies Act. Meanwhile, a group of 70 Indivisible chapters in New York are urging their senator, Minority Leader Chuck Schumer, known to fear a primary challenge from his left flank, to endorse these tactics publicly and refuse to confirm “executives of major corporations, lobbyists, and prominent corporate consultants” to the Cabinet and other top posts. “We take our role as constituents of Chuck Schumer very seriously,” said Kellie Leeson of Empire State Indivisible. “And we want Schumer to be with us demanding a Biden administration that fights for working people and reflects the diversity of the country.”
Schumer’s office declined to comment for this story. But on Thursday, he met with representatives of New York’s Indivisible chapters, where, according to a tweet from one of the attendees, Schumer “expressed his commitment to fighting for a progressive Biden administration—including leveraging tools like the Vacancy Act to ensure obstruction won’t prevent Democrats from getting to work.”
Biden may seek to use divided government as an excuse to scale back his ambitious economic agenda; he may allow climate change to continue unabated because Lisa Murkowski or Mitt Romney won’t vote for an EPA chief with a spine; and he may prefer to give over the reins of the rest of his Cabinet to self-dealing CEOs and lobbyists because, hey, that’s business, and these guys really know their industry—but that doesn’t mean liberals and leftists have to accept that fate. Not yet, anyway.
If Republicans maintain control of the Senate, the composition of the executive branch will be vitally important; executive power and agency rulemaking—rather than legislation—may be the easiest path to change. On Wednesday, the Sunrise Movement and Justice Democrats called on Biden to “seize the climate mandate” he received from American voters, create a White House Office of Climate Mobilization (one of the recommendations made by the policy task forces Biden put together this summer, with help from Bernie Sanders and others on the left), and appoint liberals to key leadership posts, including Elizabeth Warren to Treasury, Keith Ellison to attorney general, and Barbara Lee to secretary of state.
But getting left-leaning nominees confirmed by a chamber controlled by McConnell will not be easy. Biden clearly hopes that his long-standing relationship with McConnell will enable him to forge productive compromises with the notoriously obstructionist Kentucky senator. But even some moderate Democrats see the folly in that thinking. “McConnell will force Joe Biden to negotiate every single Cabinet secretary, every single district court judge, every single U.S. attorney with him,” Connecticut Senator Chris Murphy told Politico two days after the election. “My guess is we’ll have a constitutional crisis pretty immediately.”
To Waleed Shahid, spokesperson for the left-wing group Justice Democrats, the idea that Biden would consider deferring to McConnell is maddening. “McConnell and his colleagues are going on TV—right now—amplifying President Trump’s claims that Joe Biden has stolen the election. They’re delegitimizing the next four years of his presidency,” he said. “For Democrats to hint that they would then allow Mitch to have a say in their priorities is absolutely insane.”
Segal of Demand Progress framed the fight in similar terms. “Any deference to McConnell right now, given the crises we face, would be pathological.… McConnell made explicit during the 2008 economic crisis that his goal was not to improve the welfare of the American people but to make sure that Barack Obama was a one-term president. That meant ensuring the crisis response was stymied.” Segal fully expects the Kentucky senator to do the same in the face of today’s economic, ecological, and health crises.
“Anybody who could get McConnell’s blessing is definitionally someone who is not up to the task of meeting the challenges that are before us,” he said.
Instead, Demand Progress and the Revolving Door Project, which scrutinizes executive branch appointees from an anti-corporate perspective, have been pushing Democrats to embrace two hardball tactics that would allow a President Biden to circumvent McConnell’s obstruction. They include, first, appointing “acting” secretaries and agency heads under the Federal Vacancies Reform Act and, second, adjourning Congress to force a congressional recess, during which the president can make recess appointments without Senate approval.
Both methods have their limitations. The Vacancies Act allows the president to appoint two types of officials to Cabinet-level posts: those already confirmed by the Senate to another “advice-and-consent” role and senior employees (GS-15 or higher) from within the agency or department they would be overseeing.
At the moment, the former pool is effectively limited to Democrats serving multiyear terms on independent commissions—such as Warren ally Rohit Chopra and former Schumer chief counsel Rebecca Kelley Slaughter at the Federal Trade Commission; or the Federal Election Commission’s Ellen Weintraub, an opponent of corporate “dark money.” The latter pool is larger; there are many committed, liberal civil servants in the federal bureaucracy. The challenge for the Biden administration will be identifying them and lifting them up. (A few outside organizations have been working, quietly, to do this already.)
As for recess appointments, anyone (not just current officials) can be appointed during a recess. But creating one requires some parliamentary machination: The speaker of the House must first engineer a disagreement with McConnell over adjourning, at which time the president can intervene, under the Presidential Adjournment Clause in the Constitution, to prorogue Congress and force a recess. Steve Vladeck, an expert on federal courts and constitutional law at Texas University, believes this path is “theoretically available but unlikely to be worth the backlash.” Only if the other channels aren’t available, he said, would it be “worth discussing the prorogation idea.”
All of these tactics, said Brianne J. Gorod, chief counsel of the Constitutional Accountability Center, are “constitutional hardball.” But they are constitutional, written in the text. “The Recess Appointments Clause and the federal vacancies law both exist for a simple reason: to ensure that the executive branch can be staffed and the president can do his job,” Gorod told me. “If President Biden ends up facing a Republican-controlled Senate that prioritizes obstruction over governance, there should be nothing surprising about President Biden using the tools the law gives him to ensure he can do the job the American people elected him to do.”
Of course, a conservative Supreme Court could still find reason to intervene if Biden deploys these tactics at scale. Anne Joseph O’Connell, an expert on administrative law and the Vacancies Act, in particular, at Stanford, said that the court—especially the textualists—might use the Appointments Clause to prevent Biden from installing too many “acting” secretaries without the approval of the Senate.
As Segal and others pointed out, however, wielding these tactics as a credible threat could force McConnell to be more deferential to Biden’s Cabinet appointees—as was the custom for centuries. For those who care about preserving the norms of the Senate, threatening to break them might be the best way forward.
Chuck Schumer is an interesting player in this fight. The New York senator has a precarious fate. On the one hand, he holds enormous influence over the Biden administration, its Cabinet and its agenda. On the other, Representative Alexandria Ocasio-Cortez’s path to higher office may run through his Senate seat. (Asked about her political future, AOC told The New York Times that she’ll know more “as we get through the transition.… How the party responds will very much inform my approach and what I think is going to be necessary.”) Fearing a primary challenge from AOC or another left candidate—backed by Justice Democrats or the Democratic Socialists of America—Schumer has sought to fortify his left flank, recently calling on Biden to forgive a portion of student debt as soon as he takes office.
Meanwhile, New York’s left has been scrutinizing his every move. Like many Democrats, antitrust expert and liberal activist Zephyr Teachout was disappointed Schumer didn’t fight harder against the nomination of Amy Coney Barrett to the Supreme Court. “He didn’t put up the fight he could have against Barrett, or other judicial nominees,” she said. When it comes to Biden’s Cabinet, she said, “He’s got a chance to show he’s done treating McConnell as if he’s a decent, reasonable, counterpart.”
Meanwhile, the implicit threat of a primary challenge looms. “It’s not going to look great if Chuck Schumer is seen as the person signing off on toxic compromises that allow Mitch McConnell to get what he wants,” Shahid of Justice Democrats said. “Schumer knows very well that the progressive movement is a powerful force in New York, especially as longtime incumbents keep losing primary challenges here. Democrats of all stripes who helped deliver this majority will be incredibly angry if they feel like Schumer isn’t fighting for them—and, instead, fighting to make deals with Mitch McConnell.”
For the time being, Schumer is focused on winning the Georgia runoffs. Indeed, the best-case scenario for everyone on the left is that the Democrats beat the odds and achieve a majority. But if they fall short, Schumer’s situation becomes much more tenuous. As majority leader, Schumer would at least be positioned to throw a few bones to the left, forcing Biden to give him some liberal darlings to confirm—in exchange for signing off on some of Biden’s more moderate picks. Without Senate control, however, the candidates Biden is most likely to send through the normal channels are centrists capable of earning at least a few Republican votes. Every one of those nominees Schumer encourages his caucus to support is a point against him with the left, a stain that will not be forgotten when his term is up in 2022.
Thus—activists are calculating—Schumer’s political future depends on getting Biden to play constitutional hardball when it comes to the Cabinet. It’s a bold but strategic calculation, a sign of a movement acutely aware of its power and its limitations. And it just might work.