Surprise, Surprise, Congress is Broken
The perils of executive action, and why we deserve better
As violence in the Middle East escalates, and as Palestinians face famine, displacement, and death as a result of Israel’s indiscriminate attacks, it’s more important than ever to contact Congress and the White House to demand a ceasefire, no unconditional aid to Israel, and much, much more aid to Gaza. You can find a guide to calling Congress here and you can reach the White House here.
This week, President Biden announced a new plan to address the student loan debt crisis facing millions of Americans. Biden’s previous efforts had been an expansive executive action which relied on the HEROES Act and was overturned by the Supreme Court. Since then, the administration has streamlined and improved existing programs to expand relief under existing statutes. Through these actions the Biden administration has forgiven $153 billion in debt for over 4 million borrowers. And the new executive action will forgive debt for 30 million more. In a country beset with rising prices and a relentless housing crisis, where a lot of people with student loan debt weren’t able to finish college and get their degree, or were taken advantage of by for-profit colleges that have since lost accreditation, this executive action has the chance to make a huge difference in a lot of people’s lives, if the Supreme Court lets it stand.
The Biden administration has taken executive action on a whole host of issues meant to improve American lives. Since Congress failed to pass the Equality Act, which prohibits discrimination based on gender identity and sexual orientation, the Biden administration has taken executive action to allow nonbinary people to use X as a gender marker on their passports, bar discrimination based on gender identity and sexual orientation in public housing, protect queer youth in foster care, and much more. On abortion, rights, the Biden administration has taken executive action to expand access to abortion pills, provide legal support to those seeking or providing abortions, and more strictly enforce the birth control coverage mandate in the Affordable Care Act, amongst other actions. This was necessary as Congress still has not passed the Women’s Health Protection Act which was first announced in 2021.
Of course, the Biden administration isn’t the only one to use executive actions to address the failures of Congress to pass legislation. After Congress failed to pass legislation overhauling our immigration policy under the Obama Administration, President Obama issued the Deferred Action for Childhood Arrivals, an executive action that allowed undocumented immigrants who were brought to the United States as children to stay in the only home they had ever known. Given the many crises facing our society at the moment, from cost pressures and widening inequality to climate change to global instability to relentless mass shootings and gun deaths to abortion bans and book bans to legalized discrimination against trans people, it's not just good that the administration is taking executive action on these issues, it’s vitally important for protecting and improving people’s lives.
But the relentless executive action only highlights the precarity of these new policies. The Biden administration’s first week on the job was primarily devoted to overturning executive actions taken by the Trump administration, such as the Muslim ban, the ban on transgender people serving in the military, and the ban on the use of diversity, equity, and inclusion initiatives in the federal government. But if Biden loses the 2024 election to Donald Trump, many of those executive orders are likely to come back, and the new Trump administration will spend the first week of their administration undoing Biden’s efforts to protect queer people, expand abortion access, and forgive student debt.
Because Congress has failed to act on these and so many other issues, so much of the policy that comes out of the federal government is obscure rule changes and executive orders that are then challenged by opponents, make their way through the federal judiciary to the Supreme Court, where they are upheld or overturned on the whims of the court’s conservative majority. Unable to pass any actual legislation, the most impact Congress has had on federal policy is the number of federal judges confirmed by the Senate under a given president - 334 over eight years of the Obama administration, 245 under just four years of Trump, and 193 so far under Biden. These policies that are meant to improve people’s lives could be ripped away at any time, making it impossible to count on or plan around.
And it’s not just in the realm of legislation that governs our day to day lives that Congress has relinquished it’s crucial role in government. After September 11, Congress passed an authorization for the use of military force that was so vague that it has served as permission for just about every military action taken by the United States since. Congress is supposed to have the power to make war, and yet the manipulation of that original authorization has persisted unchecked by the executive branch for more than 20 years, all but removing the need for voter approval on military action except in presidential elections where foreign policy rarely factors.
As Debra Perlin, the director of policy and programs at the progressive American Constitution Society (ACS), is quoted in this piece from Time magazine said, “When a president has what appears to be unlimited powers… the only thing holding them back are the norms of the office of the presidency and their own personal accountability,” she says. “Fail-safes that we have all painfully learned can be insufficient.”
I’d like to blame this situation entirely on Republicans. And believe me, it is mostly their fault. After Senator Mitch McConnell made it the policy of Republicans in Congress to make President Obama a one term president, obstruction and the refusal to compromise because the standard. So while they failed in their goal to prevent Obama’s reelection, they were much more successful in blocking legislation. And the current Congressional leadership in the House of Representatives is more beholden to a minority faction of their own party and Donald Trump (who currently holds no elected office) than they are to their responsibility to govern. You can tell because when Republicans in the House said they wouldn’t pass any legislation that sent foreign aid to Ukraine without that legislation also including conservative immigration policy, the Senate passed just such a bill with both Republican and Democratic votes. And now House Majority Leader Mike Johnson refuses to bring the bill to the floor, even though it would likely pass, because the MAGA wing of the Republican party objects to Ukraine funding and doesn’t want to undermine Trump’s ability to campaign on his pet issue, racist immigration rhetoric.
I don’t want Congress to pass this bill. It contains unconditional military aid to Israel, which I think is abhorrent considering the indiscriminate killing they’ve done in Palestine, and I think the immigration policy is much too conservative and cruel. But it’s clear that Congress’s inability to pass legislation that a majority of both houses supports is indicative of a greater problem.
Unfortunately, however you can’t just blame Republicans. Not when any legislation outside of the budget and Supreme Court appointments needs a supermajority in the Senate to overcome a filibuster, a rule we could have changed if two Democratic Senators, Joe Manchin and Kyrsten Sinema hadn’t blocked it.
The few examples of major legislation in the past few decades seem to be the exceptions that prove the rule. The Affordable Care Act grows in popularity every year, in spite of Republican many failed attempts to repeal it, attempts that persist to this day. Republicans in Congress keep trying to take credit for provisions of the Infrastructure bill and the Inflation Reduction Act even though they voted against both bills. Unable to pass any legislation of their own they seem perfectly aware of the political, social, and economic benefits of the bills they tried to block.
So what do we do about it? Good question.
In our own party, we need to be vigilant about ensuring that the Democrats we elect to Congress are actually interested in legislating. That means choosing candidates in Senate primaries that are willing to get rid of the filibuster. And more broadly, we need to keep control of the Senate and regain control of the House in the next election so that we can pass legislation that addresses our many manifold crises, instead of relying on fragile executive orders and the dream of one day changing the balance of the Supreme Court. We must avoid the nightmare of Trump getting the opportunity to replace Thomas and/or Alito with 24 year old conservative law students. And while it is fair to keep pushing for executive action that helps people, we should keep in mind what that costs, and we should not absolve Congress of their responsibility to act.
There are some encouraging signs emerging. The Senate in 2023 voted to overturn that original Authorization of the Use of Military Force, and we should push for the same if and when we take back the House. And we should keep making our voices heard when it comes to legislation, by calling our Representatives and Senators to push them for change or to thank them for the votes we support.
If you want to help keep the Senate and flip the House, you can donate strategically with Swing Left or Vote Save America. You can also get volunteer opportunities personalized to your state and to strategic opportunities elsewhere at Vote Save America. We will get a Congress that actually works for us, if only we demand it. Let’s get it done!