By SemDem for Daily Kos
Saturday. December 26, 2020 · 9:30 PM
(Article edited to highlight connections with Georgia)
Ideally, if Democrats do their job up to and on Jan. 5, we will win both of Georgia’s Senate seats, and secure a bare majority in both chambers of Congress. Coupled with President-elect Joe Biden, this small trifecta means, at the very least, that our government can still function.
Biden shouldn’t waste any precious time trying to get the Republican Party to do the right thing, such as respecting the will of the voters. If he wants to get anything done, he is going to have to do it alone.
Hopefully, Democrats will take both Senate seats in Georgia, as this would be the easiest path for governance. However, it isn’t at all necessary for Biden to get things done. There is a critical loophole that would prevent Senate Majority Leader Mitch McConnell from blocking votes—as long as Democrats are willing to use it.
There’s also plenty of things that Biden can make happen, and not a single Republican is required to participate. Extremists rule the opposition, so we must continue to rethink the old adage that bipartisanship is a good thing; the other side—either through sabotage or cowardice—is hellbent on undermining democracy and going all in with the politics of destruction.
But what if the Democrats don’t win both Senate seats in Georgia? McConnell retains control of his chamber, and blocks all legislation and all nominees, leading to at least two years of solid obstruction. Game over, right?
Nope.
The Senate Majority Leader is a made-up position. It’s not in the Constitution, or even in the Senate rules: The power of the Majority Leader is based solely on Senate norms and traditions. Since Republicans have decided those no longer concern them, then Democrats aren’t bound by them, either, which presents a serious opportunity for the Biden administration.
Article I, Section 3 of the Constitution clearly states that the vice president shall be “President of the Senate,” but have no vote unless the votes are equally divided. Vice President-elect Kamala Harris is also the president-elect of the Senate.
When the vice president is not presiding over the Senate, the Senate will choose a president pro tempore to preside in her absence. Tradition has junior members of the majority party presiding, but the president of the Senate can take control anytime. If McConnell refuses to bring up legislation, or refuses to hold hearings or votes on Cabinet or judicial nominees, then Vice President Kamala Harris has the legal authority to take control. She would then decide what comes up for a vote.
Perhaps most interestingly, Biden can use the adjournment clause, in Article II, Section 3 of the Constitution, to force numerous recess appointments. This technique would simply require the speaker of the House to propose a lengthy adjournment, of which the Senate can either accept or disagree. However, if the Senate disagrees, the refusal would constitute a “disagreement”—which means Biden gets to decide. This technique has never been used, but again, if the GOP is going to obstruct everything they can, Democrats better be ready to fight back—hard.
As far as legislation goes, if we lose the Senate, and can’t get one Republican to do the right thing, there are plenty of things Biden can do by himself without Congress. The one thing Donald Trump did well was show us all how much a president can get done without Congress.
It’s time to put on those aviators and play hardball, Joe.
The executive branch carries a lot of unilateral power… Think executive orders, federal regulations, and national security decision directives. Importantly, Biden has already promised on his first day to hit the ground running—without waiting for Congress. Here’s a sampling of actions he might take.
Voter Suppression:
Bill Barr’s DOJ was not at all interested in fighting voter suppression. You can bet that whomever Biden picks won’t have that issue. However, there is one thing that Biden can do immediately that would be a huge victory against the GOP’s war on voting.
The entire point of Republican voter ID laws is to make voting inaccessible to thousands of poor voters. That’s because voters of color are the least likely to have a driver’s license, given that they are more likely to live in urban areas which have adequate public transportation, and unable to afford a car. Furthermore, tracking down the documentation to obtain a driver’s license can be time-consuming and expensive. Other valid IDs, such as passports, are even harder to get.
However, giving people the option to add a photo to their Social Security card, which most people have anyway, could ensure that they’re not barred from voting in the red states with strict voter ID requirements where concealed carry licenses are fine, but student IDs typically are not accepted. This is an easy directive with no congressional approval requirement.
Overtime:
The Trump Administration’s Department of Labor allows companies to screw workers out of overtime, simply by classifying workers as managers. Dollar General is the worst offender, but there are plenty of others. Most likely, the workers you see helping you in these stores were classified as managers just so they can be forced to work extra hours without overtime pay. One ex-CEO of Dollar General faced no less than four class-action lawsuits over wage theft. That CEO became very rich exploiting this loophole. He is now an incumbent senator fighting to save his seat in Georgia—Mr. David Perdue himself.
The point is that Joe Biden can do a lot on his own, and if Georgia’s runoff goes sideways, he’d better get ready to do ‘em.
Republicans will complain about everything on this list, and whine that Biden is doing things without them. So what? The American people no longer care what the excuses are for not getting things done.
Biden doesn’t have to go as far as breaking the law, but breaking from norms and traditions to get his agenda through? You’d better believe it.