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

• Antitrust Division

• 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

• Forest Service

• 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

• Job Corps

• 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

• Maritime Administration

• 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 Guard

• 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 Laboratories

• 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

• NOAA Fisheries

• 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

• Political Affairs

• Power Administrations

• 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 Development

• Rural Housing Service

• Rural Utilities Service

• Saint Lawrence Seaway Development Corporation

• Science Office

• Seafood Inspection Program

• Secret Service

• 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

• 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. Mint

• U.S. Mission to the United Nations

• U.S. National Central Bureau - Interpol

• U.S. Navy

• 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

• Women's Bureau

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

• Denali Commission

• 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

• Inter-American Foundation

• 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

• Peace Corps

• 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

• Presidio Trust

• 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

• Smithsonian Institution

• 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.