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How We Build a Progressive Biden Administration

Joe Biden is our President-elect, but our work is just getting started. In the Executive Branch, personnel is key to getting any of a President’s agenda enacted. If we want to see significant progressive change, it starts with President-elect Biden appointing progressive leaders to his cabinet and to key administrative positions. 

Mitch McConnell is already gearing up to block Biden’s appointees in the Senate, and we’re seeing signs that the Biden Transition Team is rethinking who they’ll consider pushing forward. We are crystal clear that the fate of the Biden Presidency hangs on not making this choice. 

Instead, President-elect Biden should use a play from Donald Trump’s playbook and send the people he wants to the Senate, and if McConnell refuses to confirm them, use other avenues available like the Vacancies Act and recess appointments to build his cabinet.

How Biden can circumvent McConnell’s attempts to block his appointees

If Mitch McConnell, who has already declared himself “the Grim Reaper” of the progressive agenda, keeps control of the Senate, there is a real concern that he will either block Biden’s cabinet picks outright or threaten to block them to try to force Biden to pick “moderates” who are palatable to Republicans. Joe Biden does not have to play McConnell’s game. 

Biden has two main mechanisms through which he can circumvent Senate obstruction. The first is through the Vacancies Act, a law that allows presidents to temporarily fill vacancies throughout their administration while waiting for appointments to be confirmed in the Senate. These “Acting” officials would be chosen from a pool of already Senate-confirmed appointees or from a pool of senior officials who’d been working for the department for over 90 days. This tactic is what allowed Donald Trump to fill agency positions without Democratic consent throughout his presidency. 

Additionally, Biden could make appointments while the Senate is in recess. This method is slightly more complicated and requires the president to adjourn the Senate for over 10 days. The Adjournment Clause in Section 3, Article II of the Constitution gives presidents the power to adjourn the Senate if the House and Senate are in disagreement over when to adjourn. 

Hypothetically, the Speaker of the House could set up a disagreement with the Senate Majority Leader on when the House and Senate should adjourn. The disagreement would be decided by the president, who could then set a new time to convene over 10 days later, giving him time to appoint administrative officials without Senate approval. 

What about a return to “normalcy”?

Both of these tactics require Biden to play hardball with the Republicans—a strategy he’s been loath to endorse throughout the campaign. Instead, Biden has shown a preference for bipartisan compromise. While that may sound like a good idea, we know how this story ends. The Obama administration tried to govern in the spirit of bipartisan compromise, and ended with no Republican votes on the Affordable Care Act and a block on nearly all of his judicial nominees, including Obama’s Supreme Court pick, Merrick Garland. We have to be aggressive and use every tactic at our disposal to build a better government. If we don’t, Mitch McConnell and the Republicans will steamroll our progress.

Both these options give President-elect Biden workable options to get around McConnell’s obstruction and to appoint a progressive cabinet and agency heads. There is no excuse for compromising with the Republicans for the sake of compromise.