A Few Words on How Executive Power Could Save Democracy
What do we want? Solutions! When do we want them? Now!
Yesterday, in a search for principled solutions to where we find ourselves in America’s rapidly accelerating descent into fascism, I went searching for the platform of the Democratic National Committee from the 2020 Convention.
It contains a remarkably large set of good ideas. Things like guaranteed safe housing. A commitment to abortion rights and LGBTQ+ rights, with legislative and Executive Branch agendas attached. A wide-ranging platform on criminal justice reform. A robust climate change response plan. A very strong endorsement of unions and their legal and procedural mechanisms. An end to white supremacist violence and the importance of passing gun control legislation. A full-throated endorsement of the need for voting rights protection.
Virtually none of this has actually come to pass.
Now, I know (because I reported on this on Twitter yesterday) that it is very easy, convenient even, for the Dems to blame this all on Manchin and Sinema and their obstructionist refusal to end the filibuster.
The reality, however, is that the Executive Branch of our government could be doing a lot more, and it is not.
Instead, we’re getting a lot of hand-wringing from Dems about how nothing can be done unless we increase the majority in the Senate and hold the House. While it is absolutely true that this would make things easier, it’s also become something of a patsy for the failure of the Biden administration to make use of the executive authority granted to it by the Constitution and by law.
Somewhere this past weekend, I crossed the rubicon from wanting to shout about how bad it all is (which I assume now everyone recognizes, though I am occasionally proven wrong)— something a friend described to me last Thursday as “trauma porn”— to wanting to see immediate action in whatever way possible to save lives and rights.
Right now, I’m about solutions, be those local, state or federal.
So let’s talk for a minute about what solutions might be possible.
But first, a brief discussion of The Vesting Clause.
Article II, Section 1 of the Constitution states that “[the] executive power [of the United States] shall be vested in a President of the United States.” Over time since the enactment of the Constitution, the power of this clause, known as the Vesting Clause, has been interpreted in two general ways.
First, the Unitary Executive Theory provides that the power of the Executive is basically unchecked. No less than Justice Samuel Alito has appeared to endorse this theory, in a speech he gave to the Federalist Society while a sitting judge on the Third Circuit Court of Appeals. In short, as Alito described it:
The Constitution "makes the president the head of the executive branch, but it does more than that," Judge Alito said in a speech to the Federalist Society at Washington's Mayflower Hotel. "The president has not just some executive powers, but the executive power -- the whole thing."
Judge Alito was describing the theory of the "unitary executive," an expansive view of presidential powers that he and his colleagues set forth while working in the Office of Legal Counsel of the Reagan Justice Department. Although the Supreme Court has not always agreed, he said in his speech, "I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure."
This interpretation of the Vesting Clause, while vast and largely unchecked, provides room for expansive executive orders by the President, among other powers.
Second, a narrower interpretation of the Vesting Clause holds that the President has the power to enforce the law, particularly through regulations as administered by government agencies. However, the ability to fire agency heads, for instance– something we saw in President Trump’s administration— has been questioned as a potential incursion into Congress’ power to appoint those in charge of executing those regulations.
Generally, the courts have taken a balanced approach between these two approaches when determining the extent of Executive power.
Ok, now that we’re through the legalese, let me make something clear from what I’ve just written.
President Biden has a lot of power that he’s not using right now. He could issue executive orders to protect abortion rights. He could issue executive orders to protect voting rights. He could issue executive orders on a whole host of things that would protect and strengthen our democracy.
Sure, those orders might be tested in court to determine the extent of executive power. But given past statements by conservatives on the Supreme Court, it’s quite possible his efforts to extend executive power might stand, and the effort itself would be worth it.
Moreover, any challenge to the extent of executive power would put the conservatives on the Court in a Catch-22. Generally, the right wing ideologues favor executive authority, so this goes one of two ways. First, Biden’s use of it in novel ways could be held permissible, consistent with Alito’s past statements and general Federalist society positioning. Or, second, Biden could be reined in, which would arguably serve a greater purpose in the event that we end up with, say, President DeSantis next.
Regardless, there is an enormous well of potential executive power that Biden is currently just leaving on the table. Part of fighting back means testing the limits of the legal envelope, and he should absolutely be doing that in light of where we are.
There is no downside to issuing executive orders designed to protect democracy and human rights. The worst thing that will happen is that those orders will be challenged in court and fail. The more likely outcome, however, is that some of them will stand, and that, my friends, is better than doing nothing.
But there’s more to the Executive Branch than just the executive orders power. Consider, if you will, the vast power already contained in the departments and agencies of the Executive Branch and the laws and regulations that they administer, as yet largely unused in furtherance of protecting democracy and civil and human rights.
Most Americans are unaware that departments and agencies within the Executive Branch are governed by regulations contained in the Code of Federal Regulations (CFR), which are written to implement laws.
How are those regulations made, you might wonder? In general, a federal agency first proposes a regulation and invites public comments on it. The agency then considers the public comments and issues a final regulation, which may include revisions that respond to the comments.
In other words, Congress doesn’t review or veto agency regulations.
Read that again.
Ok, now, let’s look at the vastness of the Executive Branch departments and agencies for a minute, thanks to www.usa.gov.
Departments of the Executive Branch represented in the President’s cabinet include:
the Department of Agriculture
the Department of Commerce
the Department of Defense
the Department of Education
the Department of Energy
the Department of Health & Human Services
the Department of Homeland Security
the Department of Housing & Urban Development
the Department of the Interior
the Department of Justice
the Department of Labor
the Department of State
the Department of Transportation
the Department of the Treasury
the Department of Veterans Affairs
Each of these departments include various government agencies. Those agencies include the following:
Administration for Children and Families
Administration for Community Living
Administration for Native Americans
Agency for Healthcare Research and Quality
Agency for Toxic Substances and Disease Registry
Agricultural Marketing Service
Agricultural Research Service
Alcohol and Tobacco Tax and Trade Bureau
Animal and Plant Health Inspection Service
Armed Forces Retirement Home
Arms Control and International Security
Bonneville Power Administration
Bureau of Alcohol, Tobacco, Firearms and Explosives
Bureau of Consular Affairs
Bureau of Economic Analysis
Bureau of Engraving and Printing
Bureau of Indian Affairs
Bureau of Industry and Security
Bureau of International Labor Affairs
Bureau of Justice Statistics
Bureau of Labor Statistics
Bureau of Land Management
Bureau of Ocean Energy Management
Bureau of Prisons
Bureau of Reclamation
Bureau of Safety and Environmental Enforcement
Bureau of the Fiscal Service
Bureau of Transportation Statistics
Center for Food Safety and Applied Nutrition
Center for Nutrition Policy and Promotion
Centers for Disease Control and Prevention
Centers for Medicare and Medicaid Services
Civil Rights Division, Department of Justice
College of Information and Cyberspace
Community Oriented Policing Services
Computer Emergency Readiness Team
Court Services and Offender Supervision Agency for the District of Columbia
Cybersecurity and Infrastructure Security Agency
Defense Acquisition University
Defense Advanced Research Projects Agency
Defense Commissary Agency
Defense Contract Audit Agency
Defense Contract Management Agency
Defense Counterintelligence and Security Agency
Defense Finance and Accounting Service
Defense Finance and Accounting Service Debt and Claims Management Center
Defense Health Agency
Defense Information Systems Agency
Defense Intelligence Agency
Defense Logistics Agency
Defense Security Cooperation Agency
Defense Technical Information Center
Defense Threat Reduction Agency
Drug Enforcement Administration
Dwight D. Eisenhower School for National Security and Resource Strategy
Economic Development Administration
Economic Growth, Energy, and the Environment
Economic Research Service
Elder Justice Initiative
Employee Benefits Security Administration
Employment and Training Administration
Energy Information Administration
Energy Star Program
English Language Acquisition Office
Executive Office for Immigration Review
Farm Credit System Insurance Corporation
Farm Service Agency
Federal Accounting Standards Advisory Board
Federal Aviation Administration
Federal Bureau of Investigation
Federal Consulting Group
Federal Emergency Management Agency
Federal Energy Regulatory Commission
Federal Executive Boards
Federal Highway Administration
Federal Housing Administration
Federal Law Enforcement Training Center
Federal Motor Carrier Safety Administration
Federal Protective Service
Federal Railroad Administration
Federal Student Aid Information Center
Federal Transit Administration
Federal Voting Assistance Program
Fish and Wildlife Service
Food and Drug Administration
Food and Nutrition Service
Food Safety and Inspection Service
Foreign Agricultural Service
Foreign Claims Settlement Commission
Government National Mortgage Association (Ginnie Mae)
Health Resources and Services Administration
Holocaust Memorial Museum
Indian Health Service
Institute of Education Sciences
Internal Revenue Service
International Trade Administration
Joint Board for the Enrollment of Actuaries
Joint Chiefs of Staff
Joint Fire Science Program
Joint Forces Staff College
Joint Program Executive Office for Chemical and Biological Defense
Middle East Broadcasting Networks
Military Postal Service Agency
Mine Safety and Health Administration
Minority Business Development Agency
Missile Defense Agency
Multifamily Housing Office
National Agricultural Library
National Agricultural Statistics Service
National Cancer Institute
National Cemetery Administration
National Defense University
National Flood Insurance Program
National Geospatial-Intelligence Agency
National Health Information Center
National Heart, Lung, and Blood Institute
National Highway Traffic Safety Administration
National Indian Gaming Commission
National Institute of Arthritis, Musculoskeletal and Skin Diseases
National Institute of Corrections
National Institute of Food and Agriculture
National Institute of Justice
National Institute of Mental Health
National Institute of Occupational Safety and Health
National Institute of Standards and Technology
National Institutes of Health
National Intelligence University
National Interagency Fire Center
National Nuclear Security Administration
National Ocean Service
National Oceanic and Atmospheric Administration
National Park Service
National Passport Information Center
National Pesticide Information Center
National Prevention Information Network
National Reconnaissance Office
National Security Agency
National Technical Information Service
National Telecommunications and Information Administration
National War College
National Weather Service
Natural Resources Conservation Service
Oak Ridge National Laboratory
Occupational Safety and Health Administration
Office for Civil Rights, Department of Education
Office for Civil Rights, Department of Health and Human Services
Office of Career, Technical, and Adult Education
Office of Child Support Enforcement
Office of Community Planning and Development
Office of Cuba Broadcasting
Office of Disability Employment Policy
Office of Economic Adjustment
Office of Elementary and Secondary Education
Office of Environmental Management
Office of Fair Housing and Equal Opportunity
Office of Fossil Energy
Office of Housing
Office of Immigrant and Employee Rights
Office of Investor Education and Advocacy
Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention
Office of Lead Hazard Control and Healthy Homes
Office of Manufactured Housing Programs
Office of Minority Health
Office of Natural Resources Revenue
Office of Nuclear Energy
Office of Policy Development and Research
Office of Postsecondary Education
Office of Refugee Resettlement
Office of Scientific and Technical Information
Office of Servicemember Affairs
Office of Special Education and Rehabilitative Services
Office of Surface Mining, Reclamation and Enforcement
Office of the Assistant Secretary for Research and Technology
Office of the Comptroller of the Currency
Office of the Federal Register
Office of the Pardon Attorney
Office of Violence Against Women
Pentagon Force Protection Agency
Pipeline and Hazardous Materials Safety Administration
President's Council on Fitness, Sports and Nutrition
Pretrial Services Agency for the District of Columbia
Public and Indian Housing
Public Diplomacy and Public Affairs
Radio Free Asia
Radio Free Europe and Radio Liberty
Rehabilitation Services Administration
Risk Management Agency
Rural Business and Cooperative Programs
Rural Housing Service
Rural Utilities Service
Saint Lawrence Seaway Development Corporation
Seafood Inspection Program
Southeastern Power Administration
Southwestern Power Administration
Substance Abuse and Mental Health Services Administration
Taxpayer Advocacy Panel
Transportation Security Administration
U.S. AbilityOne Commission
U.S. Access Board
U.S. Africa Command
U.S. Air Force
U.S. Air Force Reserve Command
U.S. Army Corps of Engineers
U.S. Census Bureau
U.S. Central Command
U.S. Citizenship and Immigration Services
U.S. Coast Guard
U.S. Commission on International Religious Freedom
U.S. Customs and Border Protection
U.S. Cyber Command
U.S. Election Assistance Commission
U.S. European Command
U.S. Fire Administration
U.S. Fleet Forces Command
U.S. Geological Survey
U.S. Immigration and Customs Enforcement
U.S. Indo-Pacific Command
U.S. Marine Corps
U.S. Marshals Service
U.S. Military Academy, West Point
U.S. Mission to the United Nations
U.S. National Central Bureau - Interpol
U.S. Northern Command
U.S. Parole Commission
U.S. Patent and Trademark Office
U.S. Postal Inspection Service
U.S. Southern Command
U.S. Space Command
U.S. Special Operations Command
U.S. Strategic Command
U.S. Transportation Command
U.S. Trustee Program
Unified Combatant Commands
Uniformed Services University of the Health Sciences
Veterans Benefits Administration
Veterans Health Administration
Veterans' Employment and Training Service
Voice of America
Wage and Hour Division
Washington Headquarters Services
Weights and Measures Division
Western Area Power Administration
By now, you may be getting a sense of the breadth of the power of the Executive Branch of government.
But wait, there’s more.
There are also agencies that operate somewhat independently, meaning they are not represented in the President’s cabinet but are still within the authority of the Executive Branch. These include the following:
Administrative Conference of the United States
African Development Foundation
Central Intelligence Agency
Commission on Civil Rights
Commission on Presidential Scholars
Commission on Security and Cooperation in Europe (Helsinki Commission)
Consumer Financial Protection Bureau
Consumer Product Safety Commission
Defense Nuclear Facilities Safety Board
Environmental Protection Agency
Equal Employment Opportunity Commission
Export-Import Bank of the United States
Farm Credit Administration
Federal Communications Commission
Federal Deposit Insurance Corporation
Federal Election Commission
Federal Housing Finance Agency
Federal Labor Relations Authority
Federal Maritime Commission
Federal Mediation and Conciliation Service
Federal Mine Safety and Health Review Commission
Federal Reserve System
Federal Retirement Thrift Investment Board
Federal Trade Commission
General Services Administration
Indoor Air Quality
Institute of Museum and Library Services
Merit Systems Protection Board
Millennium Challenge Corporation
National Aeronautics and Space Administration
National Archives and Records Administration
National Capital Planning Commission
National Credit Union Administration
National Endowment for the Arts
National Endowment for the Humanities
National Labor Relations Board
National Mediation Board
National Railroad Passenger Corporation
National Science Foundation
National Transportation Safety Board
Occupational Safety and Health Review Commission
Office of Government Ethics
Office of Personnel Management
Office of Special Counsel
Office of the Director of National Intelligence
Pension Benefit Guaranty Corporation
Postal Regulatory Commission
Privacy and Civil Liberties Oversight Board
Railroad Retirement Board
Securities and Exchange Commission
Selective Service System
Small Business Administration
Social Security Administration
Surface Transportation Board
Tennessee Valley Authority
U.S. Agency for Global Media
U.S. Agency for International Development
U.S. Commodity Futures Trading Commission
U.S. International Development Finance Corporation
U.S. International Trade Commission
U.S. Nuclear Regulatory Commission
U.S. Postal Service
U.S. Trade and Development Agency
Oh, you might think we’re done now in terms of the power of the Executive Branch. We’re not.
The Executive branch also controls certain boards or committees designed to handle tasks not falling within the enormous departmental and agency power listed above. These include the following:
Advisory Council on Historic Preservation
American Battle Monuments Commission
Appalachian Regional Commission
Barry M. Goldwater Scholarship and Excellence in Education Program
Citizens' Stamp Advisory Committee
Committee for the Implementation of Textile Agreements
Committee on Foreign Investment in the United States
Coordinating Council on Juvenile Justice and Delinquency Prevention
Council of the Inspectors General on Integrity and Efficiency
Delaware River Basin Commission
Delta Regional Authority
Endangered Species Program
Federal Financial Institutions Examination Council
Federal Financing Bank
Federal Geographic Data Committee
Federal Interagency Council on Statistical Policy
Federal Laboratory Consortium for Technology Transfer
Federal Library and Information Center Committee
Fulbright Foreign Scholarship Board
Harry S. Truman Scholarship Foundation
Indian Arts and Crafts Board
Interagency Alternative Dispute Resolution Working Group
Interagency Committee for the Management of Noxious and Exotic Weeds
Interagency Council on Homelessness
James Madison Memorial Fellowship Foundation
Japan-United States Friendship Commission
Marine Mammal Commission
Migratory Bird Conservation Commission
Mississippi River Commission
Morris K. Udall and Stewart L. Udall Foundation
National Council on Disability
National Park Foundation
Northern Border Regional Commission
Northwest Power and Conservation Council
Nuclear Waste Technical Review Board
Social Security Advisory Board
Susquehanna River Basin Commission
U.S. Arctic Research Commission
U.S. Chemical Safety Board
U.S. Commission of Fine Arts
Veterans Day National Committee
Beyond that is still more: quasi-official agencies that have reporting requirements to the Federal Register according to statute. They include the following:
Center for Parent Information and Resources
Federal Home Loan Mortgage Corporation (Freddie Mac)
Federal National Mortgage Association (Fannie Mae)
Institute of Peace
John F. Kennedy Center for the Performing Arts
Legal Services Corporation
National Constitution Center
National Gallery of Art
State Justice Institute
Woodrow Wilson International Center for Scholars
I would like you to consider all that the above covers with regard to American life, all that it touches and all that it could save.
Each and every one of these entities is governed by federal regulations, many of which contain provisions that are currently lying dormant that could nonetheless be invoked to save American democracy, protect civil and human rights, and prevent the violence and harm infusing every aspect of American daily life at the moment.
For the sake of discussion, though, let me take an example. Let’s consider just one of the agencies in the above list: the U.S. Election Assistance Commission (“USEAC”).
USEAC has an explicit purpose, and that purpose is to advance safe and accessible elections pursuant to the Help America Vote Act (“HAVA”) of 2002, drafted in the aftermath of the disastrous Presidential election in 2000. USEAC has a board of four commissioners, currently occupied by two Obama appointees (Democrats) and two Trump appointees (GOP), as required by law. It issues annual reports on the safety of our elections, and is a national clearinghouse for best practices in U.S. elections. It also tests election equipment for safety and accuracy.
USEAC is explicitly designed to “help election officials improve the administration of elections and help Americans participate in the voting process.” USEAC Annual Report, 2021, “Mission Statement.” It has an operating budget of $17 million. Id. In 2021, it administered more than $400 million in emergency Covid-related election relief provided through the CARES Act, pursuant to HAVA. Id. Furthermore, in 2021, USEAC established a local advisory council, to make sure that local elections were fairly administered. Id.
This agency is designed to provide for the safe administration of US elections. An enormous amount of money moves through it to secure our elections.
OK PAUSE. Now is where this gets interesting.
In order to receive funds from the USEAC, each State has to certify that it has made its elections accessible, and that various minimum requirements to make voting accessible have been met. Help America Vote Act (“HAVA”), Title III, Uniform And Nondiscriminatory Election Technology And Administration Requirements. If those minimum standards are not met, the DOJ, through the U.S. Attorney for the requisite region, can bring a civil action in federal court for declaratory and injunctive relief mandating that the minimum election standards are met. Id. at Title IV.
Translation into basic English: if a state’s elections aren’t administered fairly and equitably, the DOJ can force them to be fair and equitable via court action.
Want to hear something awful? The DOJ hasn’t filed a civil suit seeking to enforce the provisions of HAVA that make voting accessible since 2009.
So here, for the sake of argument, lies an unused power of the Executive Branch to enforce the safety and sanctity of our elections. The DOJ could, right now, file for injunctive relief that would require any state that is administering its elections in a discriminatory manner to comply with the existing law.
It begs the question: for what reason is this provision not being mobilized, right now, to protect the 2022 election process?
Let’s just say, hypothetically, that you are the State of Georgia (holding an election today), and in 2021, you wiped 101,789 voters from your voting rolls. Just as a heads up, HAVA requires the following:
[E]ach State, acting through the chief State election official, shall implement, in a uniform and nondiscriminatory manner, a single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the State level that contains the name and registration information of every legally registered voter in the State and assigns a unique identifier to each legally registered voter in the State . . . .
HAVA, Title III, Section 303(a)(1)(A) (emphasis added). Violations of that provision allow the DOJ, through the U.S. Attorney’s offices in Georgia, to seek injunctive and declaratory relief to enforce these requirements.
Do we not, in general, have questions about how those voters were wiped from Georgia’s voting rolls? Are we sure that those voters weren’t wiped in a discriminatory manner? Has anyone bothered to investigate this? Let alone when Georgia passed a law in March of 2021 that imposes voter ID requirements for absentee ballots, reduces the number of ballot drop boxes in large counties and shortens the length of runoff elections, among other provisions?
For what reason is the Executive Branch not using the power it has to secure our elections— power that is available to it under law, and has been since 2002?
And just to state the obvious: this is but one law, administered by but one agency, in the vast authority of the Executive Branch, that is currently being completely wasted while democracy burns.
Perhaps now it is becoming clear why I am so frustrated, so absolutely beyond frustrated, that the Executive Branch powers pursuant to so many laws for so many agencies and via so many regulations are being left untouched and unused, withering on the vine, while democracy dies.
There is a lot more I could say here in this already very long piece, much more I could touch on to make the point I am here to make, and many more laws I could interpret for the American layperson that would establish quite quickly how little is being done to fight for and to create a real democracy in this country that serves the people who live in it.
My point, however, is this: democracy flounders while those we elected sit on their hands.
We do not need to overturn the filibuster to save American democracy, though admittedly it would help.
We do not need to gain an even larger majority in the Senate, though it would certainly help.
What we need, right now, and what is available to us, right now, is for those we’ve already elected to use the power they have.
Time is running out, and those who we voted into office to protect our nation and our rights are throwing up their hands, blaming two Senators for where we are when they have the authority to pull out the stops and do so much more, and refusing, implicitly or explicitly, to do what we elected them to do.
And that, unfortunately, makes them almost as despicable as those who are explicitly and overtly seeking to destroy what little democracy we have left.
To put it more bluntly: the Biden Administration needs to find its willpower, its bravery, and its balls, and get to work, rather than sitting by and blaming the filibuster as America goes up in smoke.
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