Biden by the Rules | Crooked Media
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June 09, 2023
Positively Dreadful
Biden by the Rules

In This Episode

If the debt limit fight was any indication, President Biden appears to be minimizing setbacks, pausing his forward-looking policy agenda, and focusing on the stuff he enacted last Congress. But is that the best he can do? After all, low-hanging fruit remains within reach of his executive power. No one expects the president to spend the next 17 months bombarding the political world with executive orders. But it’s worth asking what he’s capable of doing in theory, and why he isn’t doing those things now. Would Biden need to change how he conceives of politics and governing in order to make the most of his administrative power? The American Prospect has been keeping track of what Biden has chosen to do and what he’s left on the table ever since he took office. David Dayen is the executive editor of the magazine, and he joins host Brian Beutler to explore the limits of the possible in this divided government, and how Biden could use this moment to reconsider the full powers of his presidency.







Brian Beutler: Hello and welcome to Positively Dreadful. With me your host, Brian Beutler. Before we went on break, Republicans were still holding the debt limit hostage, threatening to hurl the economy into recession, create chaos throughout the world unless Democrats paid them policy ransoms. Well, they got their ransoms. They freed the hostage for the next couple of years. And now everyone seemingly wants to sweep the whole episode under the rug, pretend it was just normal government business. I have a lot I want to say about how that fight played out and how it ended, most of which I’ll save for another episode. This week I want to dwell more on what the fight signified and how Democrats might regroup in its wake. Before Joe Biden became president, a friend and I were talking about how he might approach his first term, at least in our fantasy realm. And the idea we landed on was that the best politics for Biden, the best path towards making his agenda stick and his best hope for avoiding the morass that has trapped the last several Democratic presidents would be to act on as many fronts as possible, move fast and aggressively enough to sort of outpace the system’s ability to tie him up on any one front, unleash administrative action, do consequential, even controversial stuff, and do it kind of all at once so that it overwhelms the GOP’s capacity for effective outrage and the media’s appetite for scandal. We thought of it as like a substantive version of Donald Trump’s approach, which was to flood the zone with shit. There were always too many lies and too many corruption scandals for the system to make him accountable for any one of them. Well, Biden did become president soon thereafter, and to his credit, he did a bunch of stuff, particularly in his first weeks, some of which constituted genuine progress, much of which was really just clearing out the rotten underbrush from the last administration. But then things kind of slowed down. These days, to me, at least, the White House’s philosophy seems to be less shock and awe and more about trying to craft policy just so in order to avoid controversy and maybe disarm Republican judges. But among the many things the debt limit fight signified, at least to me, it signified the end of Biden’s forward looking agenda. For the time being. In the legislative realm. He’s really just trying to minimize retrenchment now. So far, he’s conceived of this as an opportunity to focus on the outflowing benefits of stuff he enacted last Congress, the Infrastructure bill, the CHIPS Act and the Inflation Reduction Act. And, of course, he should do that stuff. It’s low hanging fruit and insulated to some extent from meddling by Republicans in Congress and in the judiciary. But he could, in theory, use this moment to revisit his administrative power. There’s a year and a half until the election, and that’s a lot of time to fill with ribbon cutting ceremonies. Too much time, I’d argue. Now, I don’t have any reason to think Biden is in controversy stoking mode. I don’t expect Biden to fill the next 17 months, bombarding the political world with executive orders. But I do think it’s worth asking what he’d be capable of doing in theory and whether those things would be wise of him to do now. What’s left that he hasn’t already done? Why hasn’t he done those things? Would Biden need to change how he conceives of politics and governing in order to make the most of his administrative power, both politically and substantively? While my friend and I were gabbing about all this stuff, writers at a liberal magazine based in Washington called The American Prospect were, reporting out and compiling what they called a day one agenda for Donald Trump’s successor. And when Biden took office, they began keeping track of what he chose to do and what he left on the table. David Dayen is the executive editor of The Prospect, and he’s going to help us get a handle on, let’s say, the limits of the possible in divided government. David, welcome to Positively Dreadful. 


David Dayen: Thank you for having me, Brian. 


Brian Beutler: So before we get into the meat of this topic, how at a 10,000 foot level, do you assess Biden’s performance as an administrator thus far? I like how well and aggressively has he exploited his potential and to what extent has he exceeded or fallen short of your expectations, sort of given what you knew about him and past Democratic presidents before he took office? 


David Dayen: Yeah, I mean, I think it depends on the field and area of the government that you’re talking about. There are some really unwieldy bureaucracies within the government where progress has been kind of halting. I think the Health and Human Services Department and what’s been done or what’s not been done on drug prices is a really good example. There are other agencies where the fact that the administration made things a priority and put in personnel that was really inclined to be, you know, transformative, that that has worked. I mean, most clearly in things like the Federal Trade Commission or the Consumer Financial Protection Bureau. There are others where it’s kind of a mix of both. One interesting case study is the Department of Transportation, helmed by Pete Buttigieg. And early on in the administration, there was particularly on airlines, there was kind of a reluctance to use the fairly prodigious authorities of the Transportation Department to ensure that passengers weren’t getting ripped off, that their flights weren’t being canceled without compensation, etc.. And over the last several months. Buttigieg has kind of come around to this idea, whether it’s for his own political expediency or whether it’s just a change of direction. There’s been some changes in personnel in that agency and has really been a lot more aggressive on not just airline practices involving canceled flights, but also blocking airline mergers that were proposed, that the one between Spirit and JetBlue is the big one. So, you know, I think that no presidency is a monolith. I mean, you’re talking about thousands of people and many, many executive agencies. But I think the picture is predictably mixed. 


Brian Beutler: Right. And so I think we’re we’re sort of circling around various factors that sort of maybe predict whether Biden will be aggressive. One is institutional inertia. One is what are the incentives of the people in charge? Are they looking out for their political futures or are they are they mostly policy wonks who are trying to wield power in a way that they think is effective, maybe we’ll end up like coming up with a few more so that people kind of have a sense of what circumscribes other than what’s in Joe Biden’s head, what ends up getting done. But I think I think you guys had listed a bit over 100 actions Biden could take. How did you guys settle on those act, those hypothetical actions as the horizon and how many are left undone at this point? 


David Dayen: Yeah. So in the end, you know, we actually have a tracker for this. It’s we call it the Executive Action Tracker or EAT for short. So if you just go to, you can see how the administration is doing on these fronts. We came up with 111 actions. There are 42 in which Biden has taken at least some action. Whether getting a rule started, you know, the administrative procedure process is very long and protracted. You have to propose a rule. Then you get public comment, then you finalize a rule. So there are 23 where they’ve been finalized and another 19 where they’re in process. Not many have have seen a flat no, but there have been some instances of those, including some high profile ones. And and so that’s kind of where we’re at. So we’re at like 35, 40%, which, you know, isn’t bad. Some of that stuff is low hanging fruit. Some of that stuff is reversing actions, as you said, of the Trump administration. There are some executive orders that kind of get batted back and forth between Democratic and Republican administrations all the time. Some, I think, did, you know, expand the map a little bit. The extension of a $15 an hour minimum wage to federal contractors, for example, which gave a raise to hundreds of thousands of contractors with the federal government that I think that was one that went a little bit further. Obviously, there’s the situation with student debt cancellation, which was one that that was among the first on our list. And actually when we did our Day One Agenda series in September of 2019, that was the first one that we put out. We were looking for various ideas that, you know, the idea was, here are things they don’t need Mitch McConnell’s sign off. They don’t need Kevin McCarthy sign off. They are already passed laws that just need to be executed, which, of course, is the role of the president. If you look at Article II, it’s to take care that the laws are faithfully executed. And we thought there was an opportunity with student loans and Biden was resistant to it initially and eventually came around to that idea. It’s, of course, mired in court. They’re using an authority that was not the authority that we actually recommended in that piece. There is pretty substantial authority under the Higher Education Act, and it’s called Compromise and Settlement Authority, which gives the Education Secretary fairly unilateral power to decide what to do with debts that it’s owed. They used instead something called the Heroes Act, which was an emergency legislation that says in a time of an emergency, a particular individual should not be put in a worse financial position and that the Education Secretary, particularly on loans, on student loans, can can cancel or make changes to loan terms in order to ensure that we’re seeing what we’re seeing. I tend to think that that cases is largely fake, but that doesn’t necessarily matter to the Supreme Court. And we will find out the resolution of that within, you know, by the end of the month. 


Brian Beutler: When they argue the case before the Supreme Court. Did they fall back on this alternate standing authority so that they could tell the Supreme Court justices, look, if you don’t think that we can do it under this authority, you should hold that we can do it under this separate one or is it. Are they just going to try again if the Supreme Court flicks this one back at them?


David Dayen: That’s an interesting question. They did not use secondary authority. They said, you know, the Heroes act allows us to do this. And and let’s go ahead if that’s shot down there. I think there is a debate happening in the administration as to whether to go to the Higher Education Act and use that. But I think there’s probably a once bitten, twice shy aspect of this if if the Supreme Court shoots this down on a really bad case that the main plaintiff in this or at least the the plaintiff for which standing has been achieved at the lower court level is a company called MOHELA, which is a student loan servicer that in writing said, we have nothing to do with this case. The state of Missouri kind of dragooned them into the case and said that because the state of Missouri set up MOHELA, which stands for the Missouri Higher Education Loan Authority, that Missouri itself would be harmed by this, even though the fund through which student loan servicing fees would go to the state hasn’t been paid on in 15 years, and in fact, MOHELA would do better under under an analysis if student loans were were canceled in this fashion because they have more loans that they would be servicing. It’s a total mess. And we could do an entire hour on that alone. Point being that I think if the Supreme Court takes this case and says, yes, you can’t do that, you know, that’s that they’re going to look at that favorably. But I mean, I think the larger point and you kind of brought it forward when you’re talking about flooding the zone is that we recognized even in 2019 that the Supreme Court was was going to work its will and try to limits, you know, the conservatives on the court were going to try to limit what Biden could do with his executive authority. But that’s not a reason for inaction. I mean, in fact, that’s probably a reason for the opposite. It’s a reason to continue on all fronts so that you don’t necessarily give the forces that want to prevent it a chance at action. And one area where the administration has been pretty aggressive is in the antimonopoly front. And when I talked to Tim Wu, who is the he was the kind of competition czar at the White House, he said that, you know, they would talk to federal agencies and the agencies would say, well, we could try that, but I’m not sure that’s a landmine. And what Tim’s response was, was like, give us your land mines, give us all the land mines and will step on them ourselves. And when businesses say, you know, this is wrong, you can’t do that, we’ll say, look, get in line. We have other land mines that we’re dealing with. [laughs] So that was that was like a conscious strategy, at least in the anti-monopoly realm. And I think it would be good to see that extended to other areas too. 


Brian Beutler: Put a pin in this point, because I do want to stress test it. I think I agree, but I think I can also see another side of it, at least as pertains to the timing of when you do certain things. In the meantime, you you said there’s been progress on on 40 of the 111. And I think if we were just to recite the remaining 70 or whatever, everyone would just shut the episode off. So I want to try to make the topic a bit more accessible by asking you to name some of the most significant things he’s done. You’ve alluded to a couple student loan reform being the sort of canonical example, significant things he’s done. And then on the flip side of that, we can talk about some stuff that he’s either left on the table or declared that he won’t do. That’s kind of left you puzzled or disappointed. 


David Dayen: Yeah. So, I mean, we can just sort of go agency by agency. One of the big ones is the Department of Agriculture. Big Agriculture has, you know, at least in the Trump administration, taken over the government. There is a law called the Packers and Stockyards Act, which is supposed to protect family farmers from retaliation from bad terms of contracts by farmers that this this set of new rules that was intended to be put in actually dates back to the Obama administration, where the same secretary of agriculture was actually in charge, Tom Vilsack. They didn’t get it done under Obama. The rules that were in process were revoked under Trump and now under under Biden. Some of those rules have been put forward. They’re working on them, kind of announcing them one at a time. There were waivers under COVID that were given to meatpacking plants to allow them to speed up production lines. Those were pretty rapidly taken out. This is a worker protection measure to to eliminate those. So those are a couple examples. You know, on for profit colleges just to continue with education. There’s something called the gainful employment rule. And this is intended to say that if you are giving a degree in a particular field, that the people who receive those graduate degrees actually have to be able to get a job. And we’re not going to give you money from the student loan program if you have these sort of diploma mills where you give out these worthless pieces of paper. That’s something that has been done. There are a number of others in in the Department of the Interior. They’ve added some national monuments for conservation and protection of lands in the Housing and Urban Development Department. There’s been a restoration of something called the Alternatively Furthering Fair Housing rule, which is an attempt to stop discrimination, disparate impact in housing for African-Americans, Latinos and other other people of color. This is probably just a small portion. I don’t have every single one in my head— [laughter]


Brian Beutler: Better this way. 


David Dayen: But you know one actually really big one that appears to be in process and is one where they’re really taking on a particular industry is this was just announced just a few weeks ago. The Internal Revenue Service is putting together a pilot program on creating essentially a free filing program where the government will essentially—


Brian Beutler: This is such a good story. I like this.


David Dayen: Yeah the government will essentially do your taxes for you. Now there is a free filing program in place. Now, however, it has been outsourced to Intuit, TurboTax, and these companies usually kind of hide the ball. So it’s not really free. And they they have fought the a government option for many, many years through millions of dollars in lobbying. And this was kind of done in secret over the last couple of years. There was money in the was it the. Yes, I believe it was the Inflation Reduction Act. There was money to conduct a feasibility study on on whether this could get done. But they actually went further than feasibility. And they’ve set up this pilot and it’s going to come out, I believe, in the next tax year for a select number of folks. And then, you know, they’ll see if they can extend it beyond that. You know, we’ve seen pilots that eventually become programs and we’ve seen pilots that are really, really bad. Another one that I was pretty hopeful about initially was this idea of postal banking. 


Brian Beutler: Mm hmm. 


David Dayen: The idea that you could get a bank account at the Postal Service. There were some hindrances to that because of past laws that say you can’t create new products at the Postal Service. However, they were existing products like money orders, like the selling of gift cards that could be expanded upon into some postal banking like product. And that actually was done in 2021. There was this postal banking pilot that the post office put out. It was essentially that you could cash checks at the post office and put them onto a gift card and reload that that that particular card. So it was kind of like a bank account like product. This was not rolled out well, there was a government report that in the first year of this program, only five people used it. And one of one of them was us because we tested it when it came out. [laughter] So we’re 20% of the client base and it was just not advertised. It was only done in four postal locations around the country. And I think now it is seen as pretty much a failure and a designed to fail situation, of course. Who is in charge of the post office? The postmaster general is Louis DeJoy, who was Trump’s pick for postmaster general, and he remains in place three years into the Biden administration. So.


Brian Beutler: Is that a story where as long as he’s in place, this can’t be done competently or won’t be done competently. And so we’re probably just going to have to wait until a a new Democratic president can appoint a new postmaster and then give it another whirl. Or is it just dead? 


David Dayen: It’s probably more than that. It’s pro— You know, I don’t want to say specifically that yeah DeJoy killed it or anything. I think there’s some institutional inertia, as we’ve alluded to in other agencies. And I think that well, look, I mean, the reason DeJoy’s still in power is because Democrats who have been appointed by President Biden have refused to take him out. That postmaster general serves at the pleasure of the Postal Service Board of Governors, which the president appoints. There are, you know, because the president gets to a majority of that board, it has a majority Democratic board, and yet DeJoy is still in place. So draw your own conclusions from that. But—


Brian Beutler: Do you have any sense on the DeJoy thing? Do you have any sense of. I have I gathered when Joe Biden came in that people were really pissed at Louis DeJoy for everything from screwing up the mail for mail purposes and also screwing up the mail for voting purposes. 


David Dayen: Mm hmm. 


Brian Beutler: And it was and also like other corruption scandals. And I thought, like this is an obvious target where, like all Democrats are going to agree that he should go. And even if it’s tricky to fire him, they’ll they’ll find a way. But then I started like nosing around and it seemed like Democrats in Congress, some of them are like, maybe we should give this guy DeJoy another shot. And Biden doesn’t seem like he thinks DeJoy is is as bad as. 


David Dayen: Yeah. 


Brian Beutler: Most of the progressive world. And I’m wondering, like, what happened there? Like, did did DeJoy win people over behind the scenes somehow? 


David Dayen: I mean, I think there might have been a little hint that he endorsed this postal reform bill that ended up passing Congress. It eliminated this this ridiculous thing where the post office had to prefund the retirement funds of 75 years out. So someone who who isn’t born yet would have to have their retirement with the post office funded. No private company or public agency works this way. And they did eliminate it. And I think he was helpful to that process, DeJoy, and so he won some favor of Democrats who were pushing that bill for that reason. The real problem right now is that, you know, there’s a board of governors, as I said, and there are two people, one of whom I believe was a Democratic appointee under Trump, and another who I believe is a Biden appointee who generally favored DeJoy. And they’re not going to push him out. And so right now, those two members of the board, their terms are actually expired, but they get a kind of a gimme year. [laughs] They they get an extra year. So, I mean, Biden could have taken them out at the end of last year when when their terms expired. But he gave them this sort of grace period year. And, you know, it’s unclear whether we’re going to see anything happen at the end of 2023 either. So that’s an example, I think, of a somewhat rare example, because, I mean, Biden has generally been decent, I think, on personnel in a lot of areas, but there are some where it just hasn’t been a priority. And clearly the US Postal Service is one of them.




Brian Beutler: So let’s talk about. Yeah, like beyond just staffing and personnel, a few places where Biden could do something significant that, you know, I think that we should distinguish between significant things that would genuinely be disruptive or controversial or pit, you know, compelling stakeholders against each other and things that seem like they’re just pure gravy and like and focus on those. Like what? What could Biden have done That just seems like it would it would play well politically. It would you know, it would show him like moving forward, winning. And he’s just not either he’s not moved on it or he said, we’re not we’re not going there. 


David Dayen: There are two big ones that come to mind. The first is rescheduling marijuana under the Controlled Substances Act. This would effectively make it so that businesses could legally sell cannabis. Right now, there’s this weird federal state kind of dichotomy where some states have legalized marijuana for recreational or medicinal use, but it remains a schedule one drug at the federal level that makes it hard for businesses to sign up with bank accounts because those are federally regulated and administered. That’s why a lot of medical and recreational cannabis businesses are cash businesses. This is a crime problem, actually. And so rescheduling, I think would would go a long way. This is a fairly popular issue in both red states and blue states. I mean, they’re I don’t know exactly the number, but it’s around half the states, I believe, have at least some form of legal cannabis. And making it easier on those businesses would be seemingly a no brainer to to to to legalize this or effectively legalize this by descheduling the drug from the Controlled Substances Act. That is a road that has not been taken. The other big one is on drug prices. So, you know, the Inflation Reduction Act has this negotiation of drug prices through Medicare, but that obviously only affects Medicare recipients. There are other things that can be done to lower the high cost of drugs and that it can be done at the administrative level through the Department of Health and Human Services. So one example is a thing called march-in rights. And what that means is that there are actually a couple different sections of the US code that you could use, but you could essentially seize patent licenses for prescription drugs if they were in one case, if they were created or developed through U.S. government support, which is pretty much every drug that gets developed through either the NIH or sometimes agencies in the Department of Defense or, you know, some other agency where federal money was involved. And if those drugs aren’t being offered on and this is in the statute, quote, “reasonable terms,” then those patents can be seized and distributed to other manufacturers that can produce them, in this case more affordably. The NIH has rejected historically the idea that reasonable terms equals price, which is just insane because affordability and access in prescription drugs just go together and they add have essentially said no to a that’s kind of a threshold case of a drug. It’s a it’s a cancer drug that is manufactured through a Japanese company called Astellas, and it sells for between four and six times the price in the United States than it does in any other industrialized nation. And a group of cancer patients who take this drug, the name of which is completely escaping me right now have, you know, they petition the government to say, look, you can use margin rights for this purpose to act because this drug is so much more unaffordable in the United States because it’s been around for long enough that it has easily made back the money during its monopoly patent period, because there are FDA approved generics that are waiting for approval, waiting for for being. Released onto the market after the end of the monopoly patent period. Just take this step. Seize the patent and and let’s get more affordable drugs. And the NIH just a couple of months ago rejected that. So that’s an area there just hasn’t been a lot of creativity on drug prices. There are a lot of things that the government can do. The government is a major payer of of of prescription drugs. And while it’s and by the way, it’s setting up the the Medicare price negotiation that it was in the Inflation Reduction Act in a way that probably isn’t going to be all that effective either. And we can talk [laughs] about that. It’s the through the rulemaking process. They’re using a threshold of negotiation, like a starting point for negotiations, which looks at alternative therapies and says, okay, that’s an equivalent therapy. So that should be the price, basically using the high prices already in the prescription drug system in the United States to negotiate prices for other prescription drugs. It kind of makes no sense. So I think those are two areas where administrative action would be incredibly popular. There’s nobody really that is against other. Unless you work at a pharmaceutical company, you’re not against lower drug prices. The similarly on on cannabis, it’s a very popular reform to essentially make that legal. So those are two, I think, important areas. 


Brian Beutler: Are there patterns you’ve noticed that give you any insight or seem to point toward anything about Biden’s sort of like internal self? My sense of Biden is that like, for instance, he’s genuinely more union friendly, genuinely more antagonistic to corporate monopolies than his predecessors. And I feel like there’s corresponding movement in those realms in in the executive branch under him. Are there other realms where you can sort of see that? 


David Dayen: Yeah, I mean, you’re absolutely right about that. A big one that I didn’t mention is the proposal to ban non-compete agreements. And these are these things where in an employment context you sign a contract that says you can’t go to another job in a similar field if you quit this job for a certain period of time. And we’ve seen this usually, you know, initially it was sort of applied to corporate executives and high profile people. Tucker Carlson. 


Brian Beutler: Tucker Carlson. [laughter]  


David Dayen: Non-compete agreement. 


Brian Beutler: Jinx. 


David Dayen: But this has gone down the scale. I think it’s like one in five employees now sign a non-compete agreement in everything from, you know, fast food, janitorial services,  dog groomers, I mean, insane things where it’s clearly just a wage suppression tactic. And so the Federal Trade Commission under Lina Khan, who is probably one of the most aggressive members of the administration, put forward this proposal, and it really appealed to Biden. This is something he actually talked about before he became a candidate for office in a 2018 speech at the Brookings Institution. He he gets this intersection of labor and corporate power. That’s something I think, that appeals to him, you know, on on something like, you know, cannabis. I think that there’s still sort of residual tough on crime kind of mentalities from from Biden in that realm. Other times, I think, you know, if you’re talking about the Department of Health and Human Services, a massive agency, thousands and thousands of people, and they’ve they’ve kind of have this tendency to be, you know, go slow, very cautious and not take on these powerful interests. I think that there has been sort of an undercurrent. It’s an interesting undercurrent because it’s happening sort of simultaneously. You see, you know, in the anti-monopoly realm, you do see the administration really taking on corporations in a in a in a way that’s sort of a frontal assault, whether it’s trying to block mergers or non-compete agreements or things like that. But I think in other ways there’s been attempts to accommodate large, powerful interests like pharma, for example. So, you know, and in other places there’s just been a deadlock. I mean, the Federal Communications Commission is a good example. This agency is has been at two two. It’s a commission has five members, supposed to have five members. And right now there have been two Democrats and two Republicans on it for the entirety of the Biden administration. They nominated a woman named Gigi Sohn in 2021, and telecom interests basically blocked her nomination for almost two years until she she gave up and withdrew. And they finally have chosen a more of a consensus pick, a woman named Anna Gomez, to run and to to be a commissioner on the FCC. But this is why we haven’t seen net neutrality reforms reinstalled. These were in under the Obama administration, repealed under Trump’s FCC commissioner, Ajit Pai, and we haven’t seen them since. These are the rules that provide for an open Internet, prevent throttling by Internet service providers of certain websites and things like that. And we haven’t seen that because literally there’s been a Republican and Democratic deadlock on the commission that would do this. 


Brian Beutler: If you look at, for instance, like the marijuana scheduling thing, I think you can pretty easily ascertain that maybe Biden’s waiting for like some moment before an election to do that. Or it really does say that he’s just uncomfortable with with. Basically moving toward marijuana legalization based on, you know, whatever ideas he picked up when he was younger. Are there places where you think there’s stuff he kind of wants to do because they’re sort of true to who he is, But like, he’s just listening to his pollsters and they’re telling him or his or a strategist and they’re telling him that’s a bad idea or. Or like, you know, that doesn’t poll well. Or like my other clients are telling me, that would be bad for business. Yeah. I mean, I think. 


David Dayen: I think Biden has kind of a preternatural conservatism a little bit under, you know, not wanting to. I mean, there’s an interesting thing around executive authority, and I’ve run into this in talking to some some people about this, that it’s it’s seen in some realms as Trumpian to use aggressive executive authority at times, even though we’re literally just it’s Congress wrote the law and we’re just talking about executing the law that Congress wrote. In most cases, it’s literally definitional when you’re talking about a president. But I think some of the things that Trump did, for example, the building the wall, by diverting money from the military construction budget, things were seen as sort of aggressive and maybe authoritarian power grabs. And I think Biden has sort of instinctively pulled away from that. And so some of these things that would be seen as pretty aggressive going after the prescription drug industry, for example, I think there was just this sort of instinctual pull back away from that in certain cases. I don’t know that I have another one or two examples of this, But, you know, I think that that is is part of the process. When we talk about the FCC, for example, the fact that they didn’t you know, they sort of left Gigi Sohn to twist in the wind for a year. I mean, maybe you could connect that to the fact that the very first campaign fundraiser that Biden held as a presidential candidate in 2020 was at the home of the CEO of Comcast. [laughs] So, you know, as someone who with a lot of business before the FCC. So, I mean, there’s a little of that. I don’t think that’s the driving force, like the sort of revolving door kind of or wanting to get campaign money. I really don’t think that’s the driving force. I do think there’s some sort of instinctual pull back from being as aggressive as he can be, which, you know, I mean, in divided government, if he’s going to make progress, it’s going to be implementing the bills that he did pass in the first term, which they’re trying to work on, and coming up with ideas to make progress and move things forward, whether it’s on immigration, whether it’s on guns, whether it’s on all of these things that where there are at least some latent authorities within the executive branch. You know, if Biden wants to be a a two term president, frankly, he needs to have a record that he can tout and show to people. And maybe he thinks he already has that record through the things that he was able to get done in the first two years. But, you know, it wouldn’t hurt to add to that record. 


Brian Beutler: Right. But I mean, beyond beyond, you know, baseline political corruption that might explain some of the inaction, like his administration is sort of of a character and he’s sort of of a character where I think that they get in their own heads about like, you know, they they they think try to think too many steps ahead of how this is going to play out in the courts and how the result is going to make them look where they kind of just internalize like Joe Biden is not going to go to war with the Republican judiciary. And since he’s not willing to do that, if we just ask the courts to okay these executive actions, we’re going to lose almost all the cases and then we’re going to look lame, right? Like, I feel like that is an internal source of some of the inertia. 


David Dayen: Where where we absolutely saw that Brian was in the debt limit fight. Right. 


Brian Beutler: Right. 


David Dayen: So there were these options, unilateral action, possibilities to say I am obligated under the Constitution to keep borrowing to cover the debts that we are obligated to. You know, the things we were obligated to fund. And the 14th Amendment, Section 4 says the validity of the public debt shall not be questioned. So I have to keep doing this. And, you know, when Biden was asked about this repeatedly, he said, you know, I kind of think I have the authority, but, you know, that would take a long time. There would be court cases. And by the time they figured that out, we’d we’d have gone over the cliff and we’d have defaulted on our debt. And I can’t have that happen. What was unsaid there is that there was actually a court case that was brought forward by the National Association of Government Employees who were already harmed by the whole debt limit crisis, because one of the things that gets done once you hit the debt limit, the Treasury Department engages in what are called extraordinary measures to try to conserve cash so they can keep paying the bills. And one of the things they do is they stop reinvesting dividends and various funds into the retirement funds of government employees. So the National Association of Government Employees was being harmed by the the debt limit crisis already even before a technical default. And they use this to say, look, this is unconstitutional. The debt limit forces the president to pick and choose what laws he’s going to pass. Is he going to fund this obligation or that obligation? That’s like a line item veto, which was ruled unconstitutional by the Supreme Court in the 1990s. And we were suing to try to get an injunction. And what and the defendant in that case was Joe Biden, by the way. And what they did was Biden’s lawyers, who were the Justice Department lawyers, opposed the case and dragged it out as long as they could until they got a deal and then said there’s no reason for this case anymore because we got a deal. So that, I think, shows you the sort of nature. Biden wanted to make a deal. He wanted to have this bipartisan agreement that he could tout. And, you know, the relative benefits of that. I mean, I guess you’re going to talk about that in a future show. But but he wanted that. He wanted that on the resume. Right. And he didn’t want to flex his muscle. He didn’t want to use the executive authority to end the debt limit hostage taking situation forever. I mean, we we have a situation where, you know, a hostage situation you normally conceive of on television or the movies is you pay the ransom and the hostage is released. In this case, the ransom givers rented the hostage for two years, only to have to give it back to the hostage takers in two years. And we do this all over again. So I think there you see this kind of, you know, the kind of argument that you’re talking about. I think it’s very clear there that that he wanted to burnish this image as a bipartisan problem solver and engaging in unilateral executive action under his authorities would have conflicted with that. [music plays]




Brian Beutler: So here’s what I want to stress test what you were talking about several minutes ago, where we sort of had this instinct or this intuition that it would be best for Biden to sort of flood the zone with action instead of trying to Cabinet just so in order to be politically palatable or do okay in courts. And I mean, that is how I feel like at sort of like a core level. But, you know, I wish Biden was somebody who was more willing to attack the courts politically or propose reforming them. And I also wish he was sort of attitudinally of a mindset that like acting confidently to like push back bullies in the debt limit case is itself politically valuable, more valuable than like cutting a bipartisan deal with the hostage takers. But like, he’s not really like that. And as long as he’s not like that, if he’s going to, like, flood the zone with executive action, he’s going to start losing cases and then he’s just going to have to eat it, right. He’s just going to have to eat the defeat, just going to end up in this cycle of like action reversal and then ineffectual whining about it. I think that if you’re his adviser, if you’re him, like that’s a reasonable thing to want to avoid, at least before facing voters. 


David Dayen: Right. I mean, I think there’s some validity to that. I also think that when you’re talking about these executive actions, they’re being undertaken by dozens of agencies in the government. Thousands of people touch these things. And not not all of them probably rise to the level of Joe Biden. 


Brian Beutler: Right, right, right. 


David Dayen: And I think that the ones that are happening under the surface that have the potential to really help folks are not necessarily dependent on this this kind of nature of of Biden. I think there are a few that are that way. And it’s an interesting argument to say whether he should, you know, go go against his is his better nature and plow through or, you know, not welcome or invite the courts to just keep slapping him down over and over again. Although, you know, I mean, that kind of has you could say that that has its own benefit as well. I mean, we’re going to see in the next month whether or not the Supreme Court is going to take on this idea of denying 43 million student borrowers between ten and $20,000, like a real tangible thing. And whether that or not will be something that is replayed during the 2024 election. 


Brian Beutler: Right. 


David Dayen: I mean, there may be value to that to have these fights to get caught trying as as it’s sometimes called. 


Brian Beutler: Yeah. If if the Supreme Court throws out student debt relief and the people who are going to be the beneficiaries of that understand that it was the Supreme Court and Joe Biden uses it as an opportunity to to step it up a notch against the Supreme Court. I think that that could play some pay some political dividends in the campaign season. But I my experience with Biden is that when it comes time to do that last step like. That’s where he’s like, I don’t feel institutionally that that’s a great idea. 


David Dayen: Yeah. And of course, the other problem is they’re going to restart student debt payments. 


Brian Beutler: Right. 


David Dayen: In September. And so, you know, they experience the lived experience of 43 million student borrowers is that I didn’t have to pay this for three years. And I just got a bill from Joe Biden. 


Brian Beutler: In election year. [laughs] Yeah. 


David Dayen: So which is a real problem. 


Brian Beutler: Yeah. 


David Dayen: Now there’s another side of this where there is an executive action that he is in the midst of taking, which is creating a new income driven repayment system. And what that means is that your payment on your student loan monthly will be tied essentially to your income. And they’re making it much more generous, such that if you make $15 an hour or less, of $30,000 a year, your payment on student loans would be zero. And you would do that for a number of years. I believe it’s ten. Between ten and 20 years, you would you would pay a percentage of income. And at the end of that period, you would you would even if you had a balance, it would be forgiven. So and the problem, of course, is that these rules haven’t been finalized yet. We have this very extended administrative process, and it is likely now that the September 1st restart date of this these student loan payments, which was statutorily given in the Fiscal Responsibility Act, the debt limit deal, they said, yeah, we’re you have to start these on on September 1st. It’s likely that the new income driven repayment system won’t be ready by September 1st. So people are going to get these bills and they’re not going to be able to opt in to this new program because the program won’t be ready yet, which would, in the cases of people who are not making a lot of money, would absolve them from the need to make a student debt payment. So that’s one where it’s just kind of the the nature of the system. It’s just too slow. It’s too it’s it’s too burdensome, too too much bureaucracy is going to rob Biden of the ability to say, well, you know, the Supreme Court did this. They they they you know, I strongly disagree with them. However, we are trying to help borrowers where we put this new, much more generous system in place so that you will not have to pay above your ability to to afford it. So that that’s one that’s that’s kind of interesting. But. You know, just going back. I mean, I just think there there are so many agencies that can do really little things that are just executing laws that can create real benefits for people. I mean, one example is the way in which the administration is using the infrastructure bill and the Inflation Reduction Act to and the CHIPS Act in the way of conditioning grants or saying you’re going to get more credit and you’re more likely to get a grant under these programs. If you commit to union neutrality, if you provide your workers with child care, if you engage in these actions, that will have community benefits. And we’re seeing some tangible results of that in Fort Valley, Georgia. There was this union election for an electric bus factory called Blue Bird, and it was a successful election, one of the first large about 1,400 workers, one of the first large union elections that was been successful in the South. And one of the factors behind that was that this company took money from the infrastructure program that committed them to a union neutrality agreement. And when they started using tactics that actually went away from that, when they started to try to bust the union, the union in its unfair labor practice considerations with the National Labor Relations Board, said this company just took money that said that they weren’t going to do this. And that kind of backed off the company a little bit and it led to this successful election. So that’s like a little thing, right? That that’s just like part of a grant request that you you know, you have to be better to your workers. You have to allow them the ability to collectively bargain. And it led to a really monumental victory in the South, which you don’t see a lot of victories on for a for a manufacturing facility that could spur other factories in the south to follow suit. So I think there are opportunities with things like that and opportunities that are even in smaller things that we’re not even thinking about or talking about where it’s the ability to to really bring tangible benefits to people. And ultimately, that’s what this is all about. It’s not about political positioning, it’s about improving people’s lives. And I think that that there are opportunities to do so. 


Brian Beutler: It feels like as just like a sort of threshold test for people who are going to have influential jobs in a Democratic administration is just asking them where they fall on the Tim Wu question, like, give us your land mines that like losing in court isn’t the end of the world. If your only objective is to try to make as much change as possible stick. Which is like why I think it’s great that Lina Khan is at FTC and like, she’s not winning like lots of cases in court, I don’t think. But she’s being aggressive and creative and making some stuff stick and making companies kind of have to maneuver around what they think the FTC might do. Maybe the president doesn’t want to be in the position of like throwing everything at the wall to see what sticks, because then he loses a lot and he has to explain that to voters. But like Lina Khan can take that heat. 


David Dayen: Yeah, absolutely. And I mean, I think what she’s done and what Jonathan Kanter has done at the antitrust division of the Justice Department has been really interesting because they have been willing to lose they have been willing to test their theories in court and see if they can be successful. And there have been a couple of high profile losses, but they’re also been not just high profile wins, but companies who are refraining from from engaging in mergers because they know they’re going to face a hassle in court. We’ve seen a lot of mergers abandoned. We’re at compared to 2019, 2020. I think the number of mergers that have been conducted have fallen by half. I mean, she’s been really successful. I mean, one really interesting thing is there’s an organization called the American Economic Liberties Project that has put a tracker on how many Wall Street Journal editorial board articles have been made about Lina Khan. And there’s like 64. [laughs] There have been 64 articles since she’s been nominated to to run the Federal Trade Commission in as it’s almost like one every two weeks. The Wall Street Journal editorial board is like the mouthpiece of corporate America has been bashing Lina Khan. And I think there’s a very good reason why that is. And the reason is they don’t want anyone else to get the good idea that they should challenge corporate America. They don’t want these other Biden functionaries to think along those lines. They don’t want a successful and productive agency official to be taking hold within this administration. They don’t want the other people, like Pete Buttigieg, seemingly has has learned that this is good politics and good policy. They don’t want that learning process to happen. Right. And so I think that that’s a really telling kind of piece of this that the administration officials who are being most savaged by the conservative movement are people like Lina Khan, people like Rohit Chopra, who are very effective. 


Brian Beutler: Seems like like a really prodigious way for the Biden administration, administration to make progress is to find the Lina Khan’s or to convince the Pete Buttigieg’s to become more like Lina Khan’s. There’s separately and this goes back to Biden, the person. I think there are realms where his power as president is basically uncontested. And I’m thinking foreign policy is one realm, right? And then plenary powers like clemency, where he whatever he was used his power to do would be more or less unreviewable. And like, for instance, the idea for this episode actually came from a 60 Minute segment on veterans and former servicemen from the recent past who were punished and even imprisoned for being in same sex relationships while they were in the military. And even though there’s legal equality now, those punishments are still on the books. And it seems like even if there’s no standing policy problem for Biden to fix, he could make a big statement about sort of liberal moral values by issuing pardons and restoring rank and retirement benefits to those people. And it would just take like some creativity and just a desire to do something for the right reasons and stand up for it. Are there other sort of like mass clemencies or things like that that we might reasonably expect Biden to offer either before the election or after? I mean, I remember this idea from the Obama administration that he could maybe use the pardon power to effectively legalize immigrants or clear the records of marijuana offenders. Have you guys thought about that at all? 


David Dayen: Yeah, I mean, my understanding of the pardon power is it’s been used extremely sparingly in the Biden administration like to a surprising degree. And I think that’s a real problem. And maybe they’re waiting for a particular moment to do it. I don’t know. But you’re absolutely right. When you bring up the fact that that is an area where his his authority is pretty pretty much unilateral And obviously military action is another. Although the power of the purse is in the hands of Congress, he’s been able to pretty much get whatever is wanted to provide material and personnel or arms to Ukraine. The one unilateral action that Biden did take was moving us out of Afghanistan, and that’s one where he actually did sort of the opposite of what we were we’d been talking about on this on this podcast, like Biden’s nature is to, you know, maybe not rock the boat, not put himself in a position to, you know, a controversial position, a position to fail, a position where he’s at odds with of one faction or another. But he went against the advice of his generals. He took on what he knew was going to be pretty chaotic. He suffered the biggest negative reaction from the media of his entire presidency, even to this day. There’s sort of an indication or belief that that was a failed mission when if you actually look at what happened, obviously any loss of life is terrible. But that getting us out of Afghanistan was a relative triumph. I really do see it that way. It was it was something that was incredibly courageous for a president to do to go against the military industrial complex and actually end the war. And the problem is there wasn’t a feedback loop of credit that was given for that to Biden. It was it was seen as the beginning of a decline in his approval, particularly maybe it was a media driven decline. But I think that that is the kind of thing where he thought. I’m going to do what’s right for the country. I’m going to do what’s right for my foreign policy and damn the consequences. And we haven’t seen a lot of that in other realms. And I think it’s something that that maybe Biden should have learned a little more from. 


Brian Beutler: Yeah. I guess the note to end on is that the hope should be that as Biden thinks about that experience, he he ignores the prevailing narrative about how that played out and thinks about what he actually accomplished and what that allows, what story that allows him to tell about his presidency. Every presidency since George W. Bush has wanted to say. Like we stopped building in other countries so that we could rebuild at home. Some version of that. And like Joe Biden more or less did that right. He ended the war in Afghanistan and he passed a big infrastructure bill like that’s the policy articulation of that sort of political cliche. And and like if he wants to reframe it during the campaign, he could just run on that. He could say they all wanted to do it. I did it. We’re out of Afghanistan and we’re rebuilding here at home. But if he and his whole brain trust has internalized that, that was a huge defeat and that he should just never mention it again, then A, he’s not going to use his record to its fullest potential. And it’s also going to sort of cabin, how he approaches taking bold action in the future, where he’s always thinking about like, how is this going to play in the media? And if it plays badly, like, well, then it was just a just a mistake and I shouldn’t have done it. 


David Dayen: Absolutely. Especially if he’s running against a former president who said he was going to leave Afghanistan and didn’t and caved to the advice of the generals. I think you’ve hit on the threshold kind of example and the question of how this president is going to see his use of executive action. And if he sees it one way, we’re probably going to see more of it. And if he sees it another way, we’re probably not going to see very much at all. And so some of these things that happen in in the bowels of various agencies and they don’t really float to the surface until you find out that life works just a little bit better and a little bit easier. And some of them are right at the top and they come from the top. And the Afghanistan situation, I think, can inform another set of actions in a way that I think ultimately would be good for the country. 


Brian Beutler: Everyone should check out the executive action tracker at the American Prospect. David Dayen, thank you for spending so much of your time with us this week. 


David Dayen: Absolutely. Thank you. [music plays]


Brian Beutler: I’m glad we closed on the note we did, because I think it can help us lay out a reasonable, fair set of expectations for Biden, both between now and the election and if he wins once the election is behind him. And I want to lay it out like that, because we’re not naive here. We know that timing and sequencing are important in politics. Whether Biden was really reluctant to move on student loans or not, we know there was value in announcing his forgiveness plan in the summer of 2022, just ahead of the midterm elections. I don’t know if he’ll do it or not, but if he were to move unilaterally to reschedule marijuana or something in that realm that’s both morally righteous and politically shrewd, it would make more sense for him to do it a year from now rather than as soon as possible. Conversely, he might also want to withhold other actions even longer because there’s no sense in risking a whole election on a handful of controversial unilateral policies. But for all other issues, I think it’s reasonable for us to expect Biden to promulgate something like the Tim Wu rule for his senior appointees. If it’s in your jurisdiction, be aggressive, even if it means taking on the risk of losing in court. It’s probably the only way for Biden to build on his legacy at the moment, particularly now that Republicans have had some success chipping away at it. [music plays] Positively Dreadful is a Crooked Media production. Our executive producer is Michael Martinez and our associate producer is Emma Illick-Frank. Evan Sutton mixes and edits the show each week. Our theme music is by Vasilis Fotopoulos.