The Washington PostDemocracy Dies in Darkness

With legislation languishing and midterms approaching, Democratic lawmakers pressure Biden to issue executive orders

Rep. Pramila Jayapal (D-Wash.), chair of the Congressional Progressive Caucus, and Rep. Josh Gottheimer (D-N.J.) speak to reporters before a vote on an infrastructure bill on Capitol Hill on Nov. 5, 2021. (Jabin Botsford/The Washington Post)
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Liberal House Democrats realized late last year that many of their policy ideas for improving the lives of Americans had little chance of passing through the party’s narrow majorities in both chambers, and they began researching ways President Biden could enact similar changes through executive orders.

Their plan now is to push Biden to issue these orders — something he has previously made clear he would rather not do — ahead of the midterm elections this fall.

The Congressional Progressive Caucus (CPC), which represents 98 liberal House members, plans to release their slate of executive order recommendations on Thursday, providing Biden with directions on how to automatically lower health-care costs, increase wages for some workers, protect the environment, expand immigrant rights, overhaul policing, help care workers and institute tax changes. They also plan to urge him to cancel all federal student loan debt.

The Congressional Black and Hispanic caucuses are expected to follow suit and publicly release their own recommendations in coming weeks, which will probably include expanding voting rights and changing the immigration system, respectively.

The Congressional Progressive Caucus’s 55 recommendations were carefully chosen based on precedent of executive orders enacted by previous presidents, with the thinking that Biden could face less pushback in the courts if Republicans were to sue the administration. Rep. Pramila Jayapal (D-Wash.), chairwoman of the caucus, said lawmakers also took into consideration which policies would energize their base of supporters enough “to fight for” them in the coming months because if the policies were “super wonky and detailed, it was probably going to be hard to explain.”

This push comes as a cascade of crises, including a war in Ukraine and soaring prices at home, have taken attention away from reviving a major plank of Biden’s social spending agenda that remains stalled in the Senate. Just a year ago, many liberals were hopeful that with Biden in the White House and Democrats controlling both chambers of Congress, they could enact sweeping changes that could substantially change the lives of many Americans and the direction of the country — and show the record numbers of voters who put them in office that their party can deliver. But now, with their grasp on the majority seeming tenuous, some Democrats worry not delivering could cost them voter enthusiasm long after 2022.

“I do think we want to make sure that we’re delivering as much as we can before November, in addition to all the excellent things we’ve already done, and making sure people know what we’ve done,” Jayapal said in an interview.

Biden has long expressed caution over the reach of his executive authority. Campaigning as the candidate who would bring Republicans and Democrats together, then-candidate Biden contrasted himself from President Donald Trump by stressing that the executive’s power should not be abused or misconstrued as a replacement to legislative action.

A visual breakdown of Biden’s barrage of executive actions in his first weeks

“Some of my Republican friends and some of my Democratic friends even occasionally say, ‘Well, if you can’t get the votes, by executive order you’re going to do something.’ Things you can’t do by executive order unless you’re a dictator. We’re a democracy. We need consensus,” Biden said during an ABC News town hall in October 2020.

Biden has signed executive orders throughout his first year as president, largely reversing many orders issued by Trump. And while he has overseen the successful passage of bipartisan legislation focused on rebuilding America’s infrastructure and, most recently, a government funding bill filled with priorities for districts, there is a growing recognition on Capitol Hill that little time is left to deliver on key promises that will never garner 10 Republican votes in the Senate.

Democrats have not lost their intention to piece together a new social spending plan, previously known as the Build Back Better Act, but there is an overwhelming recognition that it would have to be more narrow in scope to appease Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) so it can pass. Doing so would mean losing a number of priorities originally in the $3.5 trillion bill passed by the House last year, most of which are championed by liberal caucuses.

Mostly dead or slightly alive? Democrats don’t yet know if Build Back Better can be revived.

The CPC began discussing the need to propose executive actions in December after Manchin announced he could not support the bill filled with Democratic priorities negotiated largely in the House. Staff took policies that would probably be cut through the redrafting process and narrowed it down to include those that either had precedent of what a president could sign through executive order or retooled by using existing legislation. Housing, for example, is not included in their recommendations because there is no previous precedent.

The final slate was sent to White House staff Wednesday afternoon and remains under review. The caucus plans to make the slate public on Thursday.

Democratic leadership appeared to be encouraged by the member-driven push to propose executive orders but stressed that their preference is to make their proposals permanent by passing legislation that is signed into law, given that anything that Biden signs unilaterally can just as easily be revoked by future presidents.

“It is very important for us to have legislative action to get the desired effect,” Speaker Nancy Pelosi (D-Calif.) said during the Democratic issues conference in Philadelphia on Friday. “But it’s very important for the executive to act if we cannot get legislative action immediately. But there’s no — in my view — there’s no substitute for legislative.”

Not all Democratic caucuses are pushing for executive orders. The New Democrat Coalition, a pro-economy group of 97 members, including the most vulnerable members facing reelection, met Tuesday evening and decided that while they support anything Biden chooses to do, they would focus their energies on finding bipartisan pathways to legislation.

“We can’t really control what the executive does, although we can certainly suggest what President Biden should do, but our job is to legislate,” said Rep. Scott Peters (D-Calif.), vice chair of the coalition. “We’re not here to be spectators.”

Jayapal stressed that the CPC’s position should not be seen as them abandoning the legislative path, instead noting that now is the time to make such recommendations because “the legislative path keeps getting pushed with all the things that are happening.”

The war in Ukraine has made it even more urgent for the government to help drive down costs in ways they can control to help Americans facing inflation at the store and skyrocketing gas prices at the pump, Jayapal argues. The CPC recommends declaring a national climate emergency and for Biden to invoke authorities under the Defense Production Act and Trade Expansion Act so domestic industries can quickly produce renewable energy technology that could help drive down costs, among other recommendations.

As for making health care more affordable, the group wants Biden to fix a “family glitch” in the Affordable Care Act to give an estimated 5.1 million people more coverage through premium subsidies. They also say that existing “march in rights,” or rights granted to the federal government to issue patents, can help lower the costs for some prescription drugs, like EpiPens, insulin and inhalers.

They also outline steps for Biden to weaken the Republican tax cuts instituted under Trump, invest in caregiving jobs, strengthen community safety, overhaul labor and revise immigration policies.

The CPC has kept relevant White House staff informed about its proposals and hopes to meet with the president to discuss its requests, according a caucus spokesperson. Other caucus groups have done similar in recent weeks.

The Congressional Hispanic Caucus (CHC) has also been encouraged by the White House to deliver executive order recommendations after Rep. Raul Ruiz (D-Calif.), chairman of the caucus, began pressing them about a pathway on immigration after provisions were taken out of the Build Back Better legislation, according to a committee spokesperson. Like the other caucuses, the CHC has engaged advocacy groups as they craft their list ahead of the midterm elections.

“There will be motivation to come out and vote because we will have some more executive orders that we can do to move forward. Look, any which way, any way possible, is our mantra,” Ruiz said about encouraging Latino turnout during a news conference last week.

Members of the Congressional Black Caucus executive board, Majority Whip James E. Clyburn (D-S.C.) and Democratic Caucus Chair Hakeem Jeffries (D-N.Y.), met with Biden during a White House meeting earlier this month and discussed the possibility of him signing executive orders to protect voting rights, which is critical for the Black community.

“We’ve talked about everything from including things in an executive order to breaking apart parts of what was in the police reform bill and putting it in another package,” Rep. Joyce Beatty (D-Ohio), the caucus chairwoman, said during last week’s retreat.

Clyburn, who earlier this year said he had not pushed Biden to unilaterally change voting and policing policies and practices, indicated that he now has “pretty good reasons to be very positive about executive action.” He stressed that Biden should seize the moment and set an example by beginning to issue executive orders in hopes that it could trigger Congress to act.

“Before Congress could ever act on the institution of slavery, Abraham Lincoln used executive order, and that’s what the Emancipation Proclamation was. The country followed some two years later — or three years after he signed the order, and I think you will find that down through history,” he said last week. “Several of us have been encouraging the president to do the significant research that is necessary and use that method to help kickstart recovery.”

Tony Romm contributed to this report.

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