Will Biden Govern More Through Legislation or Executive Orders?

J ust how much of the Democratic agenda will pass Congress and actually wind up on Joe Biden’s desk? And if the answer isn’t much, will he continue the recent trend and find new ways to govern through executive orders?

Democrats now control both houses of Congress and the White House for the first time in a decade.

But the margins in Congress are paper-thin, with only 221 seats in the House compared with 211 for Republicans (three seats are vacant). A 50–50 Senate gives Democrats the majority only with a tie-breaking vote from Vice President Harris.

Senate Democrats will be able to confirm Biden’s cabinet choices and judicial nominations. In both houses, they will also control what legislation does and does not make it to the floor, meaning that most left-wing legislation passed by the House won’t automatically die at the hands of Mitch McConnell.

But many of the more ambitious progressive agenda items aren’t likely to become law. That includes court-packing, the Green New Deal, gun-control legislation with teeth, and statehood for the District of Columbia and Puerto Rico.

Democratic control of Congress gives Biden the option of passing a big COVID-relief bill early in his term, counting on Republicans to provide the necessary 60 votes thanks to the urgency of the pandemic.

Following this, there might be additional bills that would pass under an expedited procedure known as budget-reconciliation rules that requires only a simple majority for some budgetary legislation. Democrats’ new Senate majority allows them to use these rules to pass large parts of their legislation and policy agenda.

Congressional Democrats think there will rarely be a time as propitious as this when they can pass massive new spending bills — perhaps $7 trillion over ten years. With the Federal Reserve signaling that it’s unlikely to raise interest rates any time soon, Democrats are free to think they have an invitation to spend money on everything — the way Italy or Greece did before the euro crisis — from expanding Obamacare to infrastructure.

In order to pass bills under reconciliation rules, the House and Senate would each first need to pass a concurrent budget resolution that includes reconciliation instructions for the intended bills. The statutory deadline to complete a budget resolution is April 15, but it usually takes a little longer. Once the concurrent resolution is agreed to — there is no need for the president to sign a concurrent resolution — bills that conform with the reconciliation instructions can be passed with just 51 votes including the tie-breaking vote of Vice President Harris.

Such a package could direct dollars to such policy goals as subsidizing an expansion of Obamacare, the mandated electrification of vehicles, mass transit, solar power, and affordable housing. Other possibilities include an increase in the federal minimum wage to $15 per hour and aspirational language on climate change goals, a 100 percent “clean” energy grid by 2035, and net-zero emissions from buildings. Paid parental and sick leave could also be high up the list of priorities.

Biden will be aided in any such efforts by Speaker Pelosi’s decision to scrap “PayGo” rules that required any major new spending program in health care or climate change to be offset by savings elsewhere. In theory, the imagination of Congress is the only limit to how much federal spending can be approved.

But as a practical matter, Biden’s legislative agenda could be limited by the moderate leanings of senators such as Joe Manchin (D., W.Va.), Kyrsten Sinema (D., Ariz.), Jon Tester (D., Mont.), freshman John Hickenlooper (D., Colo.), and perhaps a few more. Several of those senators also either publicly or privately oppose ending the filibuster that requires normal legislation to receive 60 votes to pass.

On taxes, look for Biden to try to get enough Republicans to go along with an increase in the gasoline tax that would allow for a bigger, more generous, and “greener” transportation bill. But higher corporate taxes may be delayed as a way for Biden to placate the business community and also because even liberal Democrats realize that raising taxes in the middle of a pandemic could boomerang.

Progressive Democrats are more likely than moderates to be disappointed in the final legislative bills that Biden signs. With a 50-50 Senate, Biden will use his leverage and longstanding ties with Senate Republicans to negotiate compromises that can bring along at least a few GOP members, such as Susan Collins of Maine and Rob Portman of Ohio.

Finally, there is the issue of the impeachment of Donald J. Trump. House Speaker Pelosi rammed it through the House partly out of anger at Trump and partly to satisfy her liberal base. But she has yet to transmit the article of impeachment to the Senate for trial, which leaves the issue of when that body will take up an impeachment trial — if it ever does.

An impeachment trial at any time would be a major distraction for Biden. The Senate would have to meet full-time for three to six weeks in order to allow Trump’s legal team a chance to mount a defense.

Unless there is clear evidence that 17 Republicans are willing to cross over and join every Democrat to convict the president, the chances of a trial actually happening will probably shrink with each passing week.

In short, while Democrats have enormous advantages as they take over unified control of the White House and Congress, they also face clear obstacles. That’s one reason you can expect Biden to follow the example of his predecessors and expand the use of executive orders. He’ll probably also pursue the aggressive enforcement of laws he favors as much as — or even more than — prior presidents have.

“Stroke of the pen, law of the Land. Kinda cool” — that’s how Paul Begala, a top aide to former President Bill Clinton, once referred to the temptation for a president to use executive orders.

Our Founding Fathers would surely be appalled, but then they would also scarcely recognize the ever-expanding behemoth that is our federal government today.