Biden has ambitious executive order options, if he’s bold enough to sign them

November 25, 2020, 3:00 PM UTC

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President-elect Joe Biden can’t depend on the Democrats winning the majority in the Senate come January. A victory in both of Georgia’s two runoff elections isn’t implausible, especially considering Biden flipped the state blue for the first time in 28 years, but it’s far from guaranteed in a historically conservative region.

Talk of late has centered on how Biden can potentially govern with a Republican-controlled Senate. With President Trump finally authorizing a formal transition process, the Biden camp is preparing to sign a string of executive orders that won’t require legislation.

Some of those orders will reverse orders that Trump signed during his presidency: Biden will rejoin the Paris climate accord and the World Health Organization; he’ll repeal the travel ban from Muslim-majority countries and reinstate the Deferred Action for Childhood Arrivals (DACA) program allowing “dreamers”—those brought to the U.S. illegally as children—to remain in the country.

But with the country still in the grips of a deadly pandemic and a destabilized economy, some Democrats are pushing Biden to unleash the fullest extent of his executive powers. Biden, after all, has drawn parallels of his task ahead to former President Franklin D. Roosevelt—who instituted sweeping, never-before-seen, federal authority to combat the Great Depression. And while it’s possible Biden won’t have the votes for such ambitious legislation, he could operate in a similar vein with executive actions. Roosevelt signed a record 3,728 executive orders during his presidency, a number of which created dozens of federal agencies as part of the New Deal.

Should the Democrats fail to take the Senate, two big questions of at least the first two years of Biden’s presidency will be over his willingness to wield such executive power—and the legality of doing so. With that said, here are some potential executive actions that some liberals have called for, but might face resistance from the courts or even Biden himself.

Canceling student debt

Earlier this month, Senate minority leader Chuck Schumer of New York gave an interview with journalist Anand Giridharadas on the hope for—that’s right—an “FDR-style first 100 days.” On the topic of student debt, which now exceeds more than $1.7 trillion in the U.S., Schumer said something striking:

“I have a proposal with Elizabeth Warren that the first $50,000 of debt be vanquished, and we believe that Joe Biden can do that with the pen as opposed to legislation,” Schumer said. Warren herself reiterated the point in a op-ed published in the Washington Post the following week, calling it “the single most effective executive action available to provide massive consumer-driver stimulus.”

The senators argue that broad language in the Higher Education Act of 1965 gives the education secretary, appointed by the executive branch, the power to “compromise, waive or release” federal student loan debts. Some legal experts have endorsed this line of thinking.

But others have disagreed, saying such a sweeping action would surely face legal challenges. And conservatives now hold a 6-3 majority in the Supreme Court should it ever decide to hear such a case.

Beyond the potential legality of canceling student debt, it’s not even clear if Biden want to sign such an executive order. Earlier this year, Biden said the federal government should forgive $10,000 in student debt for all Americans—but with that action taken through Congress, not executive order.

Following the Schumer interview, Biden was asked if he would take executive action to cancel student debt. He declined to answer and has never publicly expressed support for a $50,000 forgiveness plan.

Relaxing the ban on marijuana

Cannabis was a big winner this past election day, with residents of Arizona, Montana, New Jersey and South Dakota voting to legalize its recreational use. That brings the number of states allowing adults to consume marijuana recreationally up to 15, but it remains illegal on the federal level.

Ironically, Biden, whose 1994 crime bill increased penalties for drug-related crimes, now supports decriminalizing marijuana. “Wipe out the record so you can actually say, in honesty, ‘Have you ever been arrested for anything?’” Biden said in a televised town hall ahead of the election. “You can say ‘no’ because we’re going to pass a law saying there is no background you have to reveal relative to the use of marijuana.”

If the Democrats don’t win back control of the Senate, however, any marijuana legislation is likely dead in the water. There are some executive actions Biden could take to push cannabis towards legality, but it’ll be a question of how far Biden wants to go considering he still opposes outright federal legalization.

What’s seems more likely is Biden using the president’s authority to lessen the punishment for using cannabis. As the American Prospect notes, “The president could issue executive orders in narrow instances to relax the consequences of marijuana use, such as removing prohibitions against federal employees using recreational or medical marijuana. A 1986 Reagan-era executive order allowed federal agencies to fire employees for illegal drug use.”

Taking on Wall Street

The federal government’s regulatory agencies hold significant power over the financial industry, thanks in part to 2010’s landmark Dodd-Frank Act. Biden’s recently announced transition teams include a number of proponents for stricter Wall Street regulation, suggesting the incoming administration will bring back stronger oversight over the finance industry following years of deregulation under Trump.

The question is how far a Biden administration is willing to go. His transition chief is Ted Kaufman, a former Democratic Senator from Delaware and longtime advisor of Biden who sought to break up the big banks a decade ago. He will now play a major role in selecting appointees to oversee the Consumer Financial Protection Bureau and the Securities and Exchange Commission.

Graham Steele, a former aide to Sen. Sherrod Brown (D-Ohio), the ranking Democrat on the Senate Banking Committee, has argued that the Fed has the power under either the Dodd-Frank Act or the Federal Deposit Insurance Act to break up the country’s largest banks, such as Citigroup, JP Morgan Chase, and Goldman Sachs.

Such a measure would be extreme, however, and Biden has never publicly endorsed attacking the banks to that extent. Still, it’s clear his administration plans to get aggressive with Wall Street, it’s just a matter of how far he’s willing to enforce the law.

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