‘White flag’: Three reasons why progressives’ executive order push is striking

'House Democrats are throwing in the towel earlier than ever before,' says former Democratic White House aide

Rep. Pramila Jayapal, D-Wash., speaks with reporters at the House Democratic Caucus "issues conference" in Philadelphia on Thursday.  (Tom Williams/CQ Roll Call)
Rep. Pramila Jayapal, D-Wash., speaks with reporters at the House Democratic Caucus "issues conference" in Philadelphia on Thursday. (Tom Williams/CQ Roll Call)
Posted March 15, 2022 at 5:30pm

ANALYSIS — One branch of government’s white flag is another’s green light.

The Constitution “grants and constrains presidential power,” as several experts have put it. But, yet again, lawmakers are somewhat counterintuitively working to expand the purview of the Executive Office of the President.

That assessment of the country’s founding document and the presidency comes from professors William Marshall and Saikrishna Prakash, writing for the National Constitution Center. The University of North Carolina and University of Virginia law professors, respectively, note there is a question among scholars about “whether the president must honor statutes that purport to limit his or her authority over law execution.”

That assumes that Congress would actually bother trying to pass legislation a president could review, and then, perhaps, sign into law.

“Some suppose that the Congress can insulate execution from presidential control, while others insist that the Congress cannot strip away the president’s duty,” Marshall and Prakash note.

Meanwhile, a group of House progressives, after years of warning that former President Donald Trump was dangerously trying to expand the powers of the presidency, want to give President Joe Biden — and, by extension, the office he occupies today but another Republican, history suggests, one day will again — more policymaking prowess.

House Progressive Caucus Chair Pramila Jayapal, D-Wash., and members of her group not only want Biden to sign more executive orders but are writing some for him, as CQ Roll Call reported Friday from Democrats’ retreat in Philadelphia.

“I don’t want anyone to think that we believe that executive action is better than legislation. We would always prefer to have legislation,” Jayapal told reporters in the City of Brotherly Love.

“But certainly there are a lot of areas where,” she added, “A) If we don’t get legislation, the administration can take action, and B) the administration can take action to help move us more quickly towards the goals that we’re working on.”

Here are three reasons the progressive effort is of note.

‘Throwing in the towel’

It essentially raises a white flag over the Biden-Democratic agenda.

“If anything distinguishes the current push from prior ones, it’s the timing,” William Galston of the Brookings Institution, an aide in the Bill Clinton White House, said Tuesday. “With another nine months to go in the current Congress, House Democrats are throwing in the towel earlier than ever before. To my surprise, they aren’t pushing to form a majority around the elements of Build Back Better that 50 Democratic senators can support or trying to reopen bipartisan talks on police reforms.”

It can be difficult to tell which faction is trying the hardest to resurrect the White House’s stalled Build Back Better domestic spending package: congressional Democrats, Biden aides or the Washington press corps.

Biden and his top lieutenants have excommunicated the name of that measure, BBB for short. For the most part, so have Speaker Nancy Pelosi and Senate Majority Leader Charles E. Schumer. Rank-and-file Democrats have talked about reviving it less and less. And Sen. Joe Manchin III, the West Virginia Democrat who killed it late last year, says there are no talks about trying again, and has not put very much on his “blank of sheet of paper” approach to a slimmed-down version.

House progressives taking the significant step of crafting orders that would allow the president to enact their goals without them first passing legislation is the latest — and perhaps best — sign BBB is deceased.

That leaves one group, but the one that covers policy rather than makes it.

‘Desperate and undemocratic’

The liberals’ move is merely the latest in a long trend of members of both parties on both sides of Capitol Hill willingly giving up power to the executive branch. From war powers to health care to immigration, Congress these days almost always rides in the back seat with a president behind the wheel.

“My first reaction is that this is a desperate and undemocratic approach to the legislative process. There is a reason it is called the legislative branch,” G. William Hoagland, who was an aide to former GOP Senate Majority Leader Bill Frist, said Tuesday. “Laws are made in Congress, not in the executive branch.”

Hoagland noted that “the Trump administration was severely criticized” for four years by Democrats for “using executive orders.”

Indeed.

Here was Sen. Richard Blumenthal, D-Conn., in a brief interview with Roll Call in November 2017: “He’s used executive orders principally to roll back things from the Obama administration. There’s been no proactive or forward progress in any areas. I regret the lack of initiatives on policies. … His lack of bipartisan cooperation really impedes any good for the country.”

Legislative ‘end run’

Finally, the progressives’ push only continues the ongoing atrophying of Capitol Hill’s legislative muscles.

“Because the progressive agenda, which I always felt was overplaying their hand to begin with, has stalled somewhat in the Congress does not mean they can end run the legislative process,” said Hoagland, now with the Bipartisan Policy Center.

Both parties have tried, with some success, doing just that over the last 14 years. In a deeply divided country with red-versus-blue tribal politics, lawmakers have little incentive but to press a president from their party to enact as much red or blue policy as he or she can during a four-year term.

But end runs can have consequences on Election Day. Some GOP candidates already are taking note of the coming executive order proposals from progressives.

“The Democrats know they are going to lose in the midterms. They are now pushing Biden to use executive orders to cram through as much of their far-left agenda as they can before the clock runs out,” tweeted Nicole Hasso, a Republican candidate for Iowa’s 3rd District on Friday.

There are signs the EO push is a risky one for Democrats. For instance, a FiveThirtyEight metric using multiple polls shows more Americans (44.8 percent) want Republicans elected to Congress than Democrats (42.6 percent).

“Three of the four most recent former presidents have lost control of the House of Representatives in the first midterm election, and Biden seems poised to continue this pattern,” Galston said. “They [Democrats] prefer ending up with nothing to getting what’s possible — not a formula for success with a narrow majority that they may well lose in November.”

No wonder Pelosi spent two days in Philadelphia scolding reporters to stop calling the gathering a “retreat” — even if her progressives were signaling a full legislative pullback.