In Summer 2021, Can D.C. Walk and Chew Gum?
Newsletter 83: Busy legislative calendar is no excuse for executive branch inaction
Between the infrastructure package, democracy legislation, police accountability measures, the debt ceiling, and the 2022 budget, Congress is set to be busy this summer. Questions surrounding the content and timing of those bills are already driving the news cycle.
That’s not going to change anytime soon, nor should it -- the results of these negotiations will have major implications for the economic well-being of millions and our democracy. It’s important, however, that we remember who is and is not chiefly responsible for these outcomes. Ultimately, it will come down to Congress, not the Biden administration, to take the final votes.
Of course, that does not mean that Biden should sit by and wait for Congress to deliver on his campaign promises. He has the tools to begin delivering right now through the governing bodies he does control, in the executive branch. Kyrsten Sinema and Joe Manchin don’t stand in the way here; the responsibility for any failure to act falls squarely on Biden’s shoulders.
Governance
The possibilities for executive branch action are extensive, going well beyond what is widely appreciated. Many of those things Biden can accomplish right now, without significant changes. Realizing the full extent of the executive branch’s power to advance the public interest, however, will require sustained attention to the infrastructure of government.
It’s no secret that government capacity has taken a beating over the past four years, nor that it was in rough shape even before Trump took office. Newly installed political leaders are taking over agencies with a fraction of the headcount they had a decade ago and more problems to address than ever. These personnel-related limits are already reportedly constraining the Biden administration’s agenda on issues from fair housing to workplace safety enforcement.
Some agencies -- like the Federal Bureau of Prisons -- have met with some success staffing up quickly by bypassing traditional hiring processes. Others, like the Department of Housing and Urban Development, reportedly have plans to follow suit. This urgency is encouraging; implementing new and existing laws as successfully as possible will depend on sufficient, capable staffing. It should be replicated across the executive branch.
At the moment, it’s not clear that that’s happening. Hiring efforts thus far appear to be somewhat piecemeal. That’s little surprise given that the Office of Personnel Management, the government’s HR department, is still without a permanent leader. Kiran Ahuja, Biden’s nominee for the role, has been awaiting a confirmation vote since last month (which should serve as yet another reminder that Senate Democrats need to reform the rules governing Senate floor time if they want to have any hope of keeping up with nominations and advancing a legislative agenda). Meanwhile, Biden still has not nominated a Director for the Office of Management and Budget, the other key official for government HR.
While hiring is clearly moving forward on some level without these officials in place, their absence is a major barrier to realizing new hiring on the scale necessary. Restoring government capacity after decades of degradation will require an administration-wide commitment, not just piecemeal solutions. The next OPM Director can help make that happen by ensuring that government hiring remains on the White House’s agenda, rather than being shunted aside as is usually the case. That is especially true if Biden follows through on recommendations to elevate the director to his Cabinet. OPM can also take concrete steps, like authorizing the wider use of fast track hiring authorities and taking steps to identify and encourage hiring best practices.
“The sooner the better” can and should apply to countless of the Biden administration’s decisions, including firing the remaining Trump holdovers. The 180 degree turn underway at the Office of the Comptroller of the Currency since it came under new acting leadership should only underscore this point. Over the course of just a few weeks in office, Acting Comptroller Michael Hsu has pumped the brakes on the OCC’s agenda for cryptocurrencies and digital assets and signaled a new focus on climate risk. This is good news, but it does beg the question: what is Biden waiting for to fire other holdovers? Rather than worrying about IRS Commissioner Charles Rettig undermining his tax plans, for example, he could have tax leadership that is clearly and actively working to advance the agenda America voted for last November. And, instead of FBI Director Chris Wray, who refuses to cooperate with a congressional probe into January 6th, he could have one who takes white supremacist violence and coup attempts seriously.
Congressional Oversight
Unlike the FBI and IRS, the Department of Justice is not in the hands of a Trump official. Attorney General Merrick Garland, however, has made that easy to forget at times. At a hearing earlier this month, House Oversight committee chairwoman Carolyn Maloney revealed that the DOJ has failed to turn over any documents on the investigation into January 6 in response to requests from Congress. Just this week, the Justice Department appealed Justice Amy Berman Jackson’s order to release a complete Office of Legal Counsel memo recommending that Donald Trump not be prosecuted following the conclusion of the Mueller probe. This is the latest in an emerging pattern of obstruction, including of Congress’ subpoena for former White House Counsel Don McGahn’s testimony, cooperation with which it delayed for months and has constrained. This Justice Department has also repeatedly taken the former administration’s side in court in cases unrelated to executive privilege.
Many had hoped that the Biden administration would usher in a new era of transparency and accountability. In action after action, Merrick Garland is making clear he is uninterested in bringing about anything of the sort. Congress, however, need not take no for an answer. They have the power, and indeed the responsibility, to ensure that the law is being carried out as intended. What were egregious legal positions and departmental policies under Jeff Sessions and Bill Barr are equally so under Garland. It’s time that members of Congress make that clear to Garland, with more forceful statements, compulsory requests for documents, and hearings.
Personnel
The fight over who will be the next director of the Patent and Trademark Office is ongoing and just got a lot more interesting. According to new reporting from the American Prospect’s David Dayen, Senator Chris Coons is claiming that he has been given the power to select the USPTO Director. And he’s adamant that that person be a staunch defender of the current intellectual property regime exactly as is, if not an advocate of making it stronger (read: even more unjust). Coons was a loud opponent of the TRIPS waiver and, if it’s true that he gets to make the call for USPTO Director, he holds the power to undermine it with appointees like Ellisen Turner, Jannie Lau, or (newly profiled on our blog) Kevin Rhodes.
Luckily, others in Congress are pushing back on Coons’ efforts. And, thanks to the TRIPS waiver fight’s role in bringing new attention to IP policy writ large, the Biden administration may sense that a terrible USPTO pick will not be as politically painless as it once might have been. Hopefully, those two factors will weigh against a disastrous choice.
Climate Finance
On Thursday, Biden signed a much-anticipated order directing agencies to take steps to address the impact of climate change on the financial system. Overall, the order is strong, reflecting input from many in the climate movement. The question now is: how quickly and effectively will it be implemented? After all, we don’t have time to spare.
The order lays out a timeline of 180 days for most agencies to complete their reviews and reports. This means that their release will fall just after this year’s U.N. climate summit in Glasgow. If Biden is sincere in his hope to establish U.S. leadership on this issue, he will push agencies to have results and a plan before that point.
Successful implementation will also depend on staff capacity at the relevant agencies. As with other parts of the government, financial regulators have seen acute staffing losses over the last four years that came on top of a steady downward trend in headcount beforehand. These reduced staffing levels were not enough to keep up with the agency’s existing responsibilities so there is little reason to believe that they are sufficient for tackling new areas. New, rapid hiring must figure into agencies’ plans to deliver on the demands in this EO and new climate policy responsibilities more generally.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:
Revolver Spotlight: Brian Netter
What Biden & Garland's DOJ Must Do to Monitor & Curb Police Misconduct
Revolver Spotlight: Ellisen Turner
Biden Hired State Dept. Official From Eugene Scalia's Law Firm, New Report Shows
Revolver Spotlight: Howard Shelanski
Revolver Spotlight: Kevin Rhodes
Revolver Spotlight: Scott Harris
100 Days in Office and Biden is Outpacing Obama
The Difference Between Public Interest And Corporate Lobbyists
Were Biden’s Ethics Waivers for Labor Ties Justified?
Plumbing the Depths at the SEC
Former Obama Staffer Jay Carney Is Amazon's Top Flack
The Majority Report with Sam Seder 5/14
Progressives Split on Powell’s Renomination to Fed Chair
Progressives tell SEC chair to fire Trump-era audit board
Progressives Ask Biden Not To Name Pharma Allies To Top Patent Posts
Biden faces big decision on Fed leadership
Joe Biden sparks ethics questions by hiring relatives of senior staffers
Chris Coons Working to Install Business-Friendly Candidate for Key Patent Position
Make sure to follow us on …