Dem
51
GOP
49
It is hardly a secret that the new House is going to have to be dragged kicking and screaming into doing those things that are mandatory, like adopting a budget and funding the government. It is certainly not going to pass any bills that it doesn't have to, except maybe a couple that have no chance of passing the Senate, such as making abortion a capital crime. Joe Biden and he Democrats know this, so is Biden just going to sit around and twiddle his thumbs for 2 years? Not if progressives have any say in the matter (which they might not).
Many of them are now urging Biden to govern by executive order (EO). This is not really possible for a couple of reasons, but it may be all Biden can do, other than nominating judges (which will be much easier as soon as Democrats get a majority on the Senate Judiciary Committee on Jan. 3, 2023). EOs are not laws. Only Congress can make laws. EOs are instructions from the president to the executive departments indicating the president's priorities and how be wants resources managed. They can be—and often have been—sucessfully challenged in court on the grounds that the president has no constitutional or legal authority to do what the EO is trying to do.
Nevertheless, progressives want Biden to give his best shot at it, between judicial nominations. For example, Deirdre Shelly of the Sunrise Movement is asking Biden to cancel more student debt, declare a climate emergency, and use the Defense Production Act to expedite the transition to renewable energy. These three illustrate the likely range of successes and failures. Biden probably doesn't have the authority to cancel student debt and the courts are likely to call him on that. Biden can probably declare a climate emergency but it is not clear what consequences, if any, that declaration might have. Biden can certainly invoke the Defense Production Act and order, say, General Motors, to produce an extra 100,000 electric cars because depending on Russia or the unstable Middle East for oil is a threat to national security.
Another progressive priority is enforcing overtime rules. Here the instruction would be to the Dept. of Labor to make sure all the laws that require companies to pay overtime when workers work more than a certain number of hours a week are vigorously enforced. This is the kind of "priority" issue that EOs are designed for.
The progressives also want to crack down on "junk fees." These are well-hidden charges from hotels, airlines, banks, cable companies and others. For example, some hotels have mandatory "resort fees" that cover the use of WiFi, the gym, the pool, and other facilities that a guest may not be interested in using. If a fee is mandatory, it is part of the price and not disclosing it up front and advertising a lower price is fraud. Biden could certainly order the DoJ to prioritize prosecuting hotels and other companies for false advertising.
Another area where progressives want an EO is on marijuana. It is illegal nationwide and only Congress can change that. That some states have legalized it means only that selling it or using it doesn't violate state law. But it still violates federal law. Biden could instruct the DoJ to put far more resources into, say, prosecuting corporate monopolies and far fewer resources into prosecuting violations of marijuana laws. This is known as "prosecutorial discretion." The courts have long recognized that no law enforcement agency has the resources to prosecute every violation of every law, that choices have to be made as to what is most important, and it is not the job of the courts to second guess the choices the agency makes.
Aside from the possibility that the courts will throw out some of his EOs, Biden understands that signing certain EOs will motivate parts of his base, especially young voters. If the courts later say: "Nope, no can do," Biden can blame the courts and say he needs another 4 years to appoint "good" judges who won't legislate from the bench. Trying to govern using EOs is hardly a panacea, but it is probably all Biden can do with a House that will block just about everything other than possibly naming a post office in every state after Donald J. Trump. (V)