Thursday, January 28, 2021

Part I

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It’s a New Day in Washington D.C. Under the Biden Administration: Anthony Blinken Confirmed as Secretary of State and Janet Yellen as Secretary of the Treasury

It’s a new game in Washington, D.C. There’s a new presidential administration in place, and now in motion. And as you think about the shift from one presidential administration to another, much less, when that change comes with the change between presidents of two different parties, you are actually looking at a very large transformation of an extremely large and powerful organization. As a matter of fact, the most powerful organization on planet earth, the government of the United States of America.

That transformation can be quantified in a few ways. Number one, there are more than 4,000 direct presidential appointees. That is to say that around Washington, D.C. and throughout the federal government, wherever it’s found, there are about 4,000 jobs that have to be filled directly by the White House. And here’s a perhaps more stunning statistic, 1,200 of them require Senate confirmation.

Now, just think about that, if the Senate gave much attention to the vast majority of these appointments and confirmations, that would leave no time for the Senate to do anything else. Instead, most of these are rather proforma. The confirmation comes as a matter of routine, passes through the respective committee. If it falls under a committee then gets to the floor of the Senate, where most of these confirmations take place without much public attention at all.

But when it comes to several dozen of these appointments, particularly the president’s Cabinet, and then of course judicial appointments, as well. But as you’re thinking of cabinet members, you really are looking at those who bear, not only political and organizational, but constitutional responsibility. And as you think, the Cabinet to the president of the United States, and you go all the way back to George Washington, the first president, the first presidential administration, you come to understand that amongst the Cabinet members, there is a ranking. First of all, there’s the big four, the Secretaries of State and Treasury and Defense and the Attorney General of the United States.

But amongst the big four, the primacy goes to the Secretary of State. Now, historically the primary responsibility of the Secretary of State is to represent the president and to represent the state, the United States of America in so far as it relates to other nations, international relations, foreign affairs. The Secretary of State is also in charge of foreign relations, extending to the diplomatic core.

But as you’re thinking about Secretaries of State, you need to recognize, as I mentioned previously on The Briefing, when we think about the Department of State, it is divided between those who are political appointees and those who are careerists, they would define themselves as professionals. But the reality is, they represent the continuity of the State Department, even when that is at the great frustration of presidents, that continuity tends to be more liberal and more internationalist in its perspective.

But interestingly, the Secretary of State of the United States also fulfills a responsibility, at least in part analogous to the Chancellor, the Lord chancellor, traditionally of the United Kingdom, of England. And that means that the Secretary of State represents the continuity of government.

And one of the interesting things that comes up as a footnote in the responsibility of the office of Secretary of State takes us back to the resignation of President Richard Nixon from office. He was facing almost certain impeachment and conviction, thus removal from office, the president decided to resign. But then the question came to this, to whom would the president of the United States resign? To Congress? No, that would violate the separation of powers. To the judiciary? No, same problem. To the people of the United States? Well, that really doesn’t work either. So to whom did Richard Nixon address the letter resigning as president of the United States? He addressed his letter upon legal and constitutional advice to the Secretary of State of the United States, then Secretary of State Henry Kissinger.

But as you’re thinking about the transformation of Washington with the new administration, think about the shift from Secretary of State, Mike Pompeo, to Secretary of State, Tony Blinken. Mike Pompeo had been in Congress. He was understood as a conservative Republican serving in Congress. He was then appointed by President Trump to be the Director of the Central Intelligence Agency. And later he became, of course, the Secretary of State. A graduate of West Point, he was in the private world and then he entered public life, running for Congress, after serving several terms, then the CIA, then the State Department. The point is he was not a career foreign service officer. He didn’t come from that world.

But now the new Secretary of State, Anthony Tony Blinken, he comes with a very different background. As a matter of fact, he spent many of his years of childhood in Paris, not in the United States. His background is largely concentrated in National Security and in Foreign Affairs. He previously served as the National Security Advisor to then Vice President Biden. That probably explains why he is now Secretary of State. In the Obama administration, he served also as Deputy National Security Advisor and then Deputy Secretary of State. Interestingly, both his father and his uncle served as United States Ambassadors. He moved with his mother and his stepfather to Paris when he was fairly young. His stepfather, by the way, was the only one of 900 children in a school in Poland to have survived the Holocaust, only one out of 900 children.

Blinken attended Harvard University and then Columbia Law School. And well, the rest of his pedigree is pretty clear, but he represents what is now recognized throughout the major medium and throughout the foreign policy establishment, as a reset, going back to a certain kind of internationalist norm, when it comes to American foreign policy and he’s sending the expected signals. The point is, this really is a huge transformation. The big questions will be, how does this get translated into policy? Just mentioned some hotspots, such as Russia, China, just think about Israel and the Middle East. It’s going to be a very interesting few months ahead. On the other hand, given the trajectory of recent Democratic administrations, perhaps it’s fairly predictable. We’ll see.

But if the Secretary of State, even as reflected in the constitutional order of succession is the prime first member, the member of priority in the president’s Cabinet, amongst the big four, remember Treasury, Defense, State and the Attorney General. The Department of the Treasury is very, very important. The new Secretary of the Treasury is Janet Yellen. She becomes the first woman to serve in that capacity. She also becomes a very rare individual and having served as the Chairman of the President’s Council of Economic Advisors and as Chairman of the Federal Reserve Bank in previous service. Thus, the big thing about Janet Yellen is that she is a known quantity as was Anthony Blinken. And that explains why the president being given difference in these two appointments saw the confirmation overwhelmingly. And that meant also by the majority of Republicans, when it came to these two Cabinet members.

Janet Yellen, however, is going to be in a very interesting position. She is likely now to be advocating policies on behalf of President Biden that she had opposed in her previous roles. One of the most interesting dimensions of her current role as Secretary of the Treasury is that she is now in a clearly political role. Having served in so many other major capacities of economic responsibility, serving as Secretary of the Treasury, we’re about to find out exactly what Secretary Yellen will do, but just to remember, a member of the Cabinet answers to the president in a way that is true and adds a political dynamic, that was not true of the other positions that Janet Yellen held. Most importantly, as compared to serving as both a governor and later as the Chairman of the Federal Reserve Bank.

It’s also of interest to note that Janet Yellen is not only an economist, she is married to an economist, George Akerlof, now Georgetown University, and he’s not just an economist, he’s an economist who has been awarded the Nobel Prize for economics. Now in days ahead, we’re going to look at some of the research of Janet Yellen’s husband in particular, George Akerlof, as it comes to young men and marriage and economics. It’s really interesting research. And there are some huge worldview and moral issues attached to it. No one in the federal government seems to have much interest in it, but we will.

Part II

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A Democratic Socialist Chairs the Budget Committee — Seismic Shift in the United States Senate

But the change isn’t just coming in the Executive branch. When you think about the Cabinet and then the other positions that will be appointed and confirmed, some of them, of course already confirmed. No, speaking of confirmation, we need to look to the fact that that’s one of the powers of the United States Senate. And then we think of the Senate, the shift from Republican to Democratic control of the Senate is seismic. And of course, this came down to the special elections for the two Senate seats in Georgia that were held on January the 5th. And in both of these cases, it was not only a shift from “R” to “D” but from a conservative Republican to a very liberal Democrat. And it’s not only that, with the 50/50 split in the United States Senate, between Republicans and Democrats, that means that the Vice President of the United States, the president of the Senate, Kamala Harris, is now the tie breaker. And as the tie breaker, that means that she breaks the tie in a Democratic favor.

And that means given the fact that the Senate has now moved ahead with the adoption of new rules for this session, it means that Democrats are now serving as the chairs of the Senate Committees. That is one of the big powers of the Senate majority and the Senate Majority Leader, of course invested with enormous responsibility and power to determine what does and does not get to the Senate floor. And that means does or does not even come up for a Senate vote.

But the big thing to note, as you’re thinking about the Senate committees is that every one of them is now going to change in terms of its committee chair, its committee leadership. Just take one example, the Budget Committee of the United States Senate is now going to be chaired by Bernie Sanders, independent Senator from Vermont, who of course caucuses with the Democrats and was at one point a front runner for the Democratic presidential nomination in 2020, having run also previously for that same nomination.

Here’s the thing you need to keep in mind. You now have an avowed old Democratic socialists. That’s his own term for himself, an avowed Democratic socialist is Chairman of the Budget Committee of the United States Senate. And the chair of the Budget Committee has a great deal to say, well, it should be obvious with the federal budget or at least the budget as might be approved by the Senate. But it’s more than that. The Senate Budget Committee has a great deal to do with what will come under the rubric of what is known as reconciliation. That is legislation that will come as a part of “reconciling the budget,” but actually can come to include any number of things. But what you need to keep in mind is that whatever comes to the Senate floor under that rubric of reconciliation bills, it doesn’t require 60 votes to get culture. The filibuster does not apply. All it requires is a majority of the senators. And that means that there is enormous power now invested in Senator Bernie Sanders as chair of the Senate Budget Committee.

And again, what does it tell us, that in the United States, in the year of our Lord, 2021, we have an avowed Democratic Socialist as chair of the Senate Budget Committee. Elections have consequences, keep that ever in mind.

Part III

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The Exploding Use of Executive Orders: What Are Executive Orders and What Do They Tell Us About a President?

But speaking of elections and consequences, we shift to now to something else. And that is the reality in the role, the impact and the historical perspective we should have on executive orders. Executive orders are constantly in the headlines if you’re looking at them, because executive orders are official declarations, orders coming from the nation’s chief executive, the president of the United States. Executive orders go all the way back to the first president, George Washington, although he issued very few. Only one president in the history of the United States, William Henry Harrison issued no executive orders during his time in office.

Executive orders effectively carry the force of law. And all that is required for an executive order to be ordered is the signature of the president of the United States. So what are we looking at here? Well, in his first three days in office, President Biden handed down 19 executive orders and the headlines this morning indicate that there have been more that have been issued since then. President Biden in three days, 19. President Trump his predecessor in his first three days, one, that’s one as compared to 19. President Obama in his first three days, five. President George W. Bush handed down zero in his first three days. President Bill Clinton handed down, one. Now that one executive order had several parts dealing with abortion and it represented the liberalization of abortion, after the years of the Reagan and Bush administrations.

Choosing the first day of office to sign this kind of executive order was Bill Clinton’s way of saying that he was going to liberalize America’s abortion laws as a direct affront to the two previous administrations, those of President Ronald Reagan and George H. W. Bush. As you look at the executive orders handed down by President Biden, in his first days in office, it is a similar attempted rebuke. It’s a very clear way of saying, there is a new team in town, but there’s more to this of course. And in worldview significance, there are some really huge issues for us to think about. For one thing, the use of executive orders has exploded with the expansion of the federal government.

But before we look at that history, let’s ask the question, what would be the legal or constitutional basis for executive orders as handed down by and signed by a president of the United States? Well, if you go to Article II of the US Constitution where the president’s duties are defined, it is made clear that the president is to faithfully execute the laws of the nation. And so what you have, starting with President Washington and continuing in an explosive sense, what you have our president saying that executive orders are their way of faithfully executing the laws of the land. There is another sense in which executive orders can we made legal by the fact that Congress in legislation explicitly delegates certain decisions to the president of the United States, but the vast majority of the executive orders and in particular, the executive orders of national controversy, they tend to come by the claim of Article II powers by a president of the United States.

But as I said, you look at the early years of the American presidency, few executive orders, why? It’s because we had a working divided government, a government of three powers, a separation of powers. The Legislature had its role. The Executive had his role, and the Judiciary also had its role. But what we have right now is the fact that going back to the beginning of the 20th century, the presidency has grown in relative authority. And presidents, especially with the growth of administrative power and the administrative state, the explosion of a vast federal bureaucracy, which the founders never had anticipated and about which they would have been horrified. The reality is that the great shift in power has been towards the Executive, and executive orders are one demonstration of that.

There’s something else for us to consider. And that is the fact that legislation resolve almost all of these issues. Presidents are now stepping in with executive orders because Congress has effectively stepped back from its responsibility to legislate. You look at issue after issue. The reality is, that Congress nowadays rarely passes any meaningful legislation. In the absence of Congress doing its job, both in the House and in the Senate, both of the other branches of government have grown in power. Most importantly, the presidencies, we’re thinking about executive orders, but when it comes to many issues, just think about the fact that the Supreme Court, the Federal Judiciary in general, but the Supreme Court in particular has taken on issues, basically legislating.

And at least one reason why it’s doing so because the legislature isn’t legislating, but that’s not the role the founders designed for the federal judiciary. That’s not what was the founder’s expectation of the Supreme Court. The fact that the Supreme Court would frankly rule one way or the other on the issue of abortion nationwide would have been outside the founder’s conception, much less that a progressivist understanding of the constitution would be used by a majority of the court to demand the legalization of abortion nationwide. But in the absence of the legislature, legislating in a responsible and regular way, the presidency has exploded.

And as you look at the history of executive orders, there was an explosion in the early decades of the 20th century with the progressivist movement. And by the way, that would include not only most importantly, President Woodrow Wilson, a Democrat, it would also include President Theodore Roosevelt, a Republican who wanted to see an expanded federal role. But the great explosion in the number of executive orders handed down by a president, came with President Franklin Delano Roosevelt, his understanding of an activist presidency and what he declared to be a crisis. No doubt, by the way, the nation was in a crisis. Most importantly, in the beginning of his term, the crisis of the Great Depression, but let’s look at some numbers because the numbers help us to see the story. President Warren G. Harding handed down 522 total executive orders. Calvin Coolidge, more than doubled that 1,203. Herbert Hoover, following Coolidge 968. Franklin Delano Roosevelt, 3,721.

Now, at least in part you can say that was because he was in office so long, but the reality is the numbers are more accurately described by Roosevelt’s activism, his understanding of the role of the president and the role of the federal government, a vast expansion of the federal government. And that meant a vast expansion in the responsibilities and powers of the nation’s chief executive. Now, one of the things we need to note and the founding fathers were very aware of this and their understanding of human depravity, human sin, of the temptations of power. That’s why we have the separation of powers. They understood that too much power in the executive would lead to an effective autocracy.

Now, as you’re looking at the expansion of these executive orders, you need to understand that much of it is inherently political. Some of it is just rather necessary. It’s true, the Article II powers of the president means that the president has to hand down policies through the Executive branch that fulfill the laws that he has sworn to execute. But you’re looking at many other actions by a president. And in particular, the opening actions by President Biden that indicate that he has a political, cultural and moral agenda that he’s making abundantly clear.

Some of these are just raw political payoffs, payoffs to interest groups in his voter base, particularly in the Democratic Party, groups such as the pro-abortion lobby, just look at the executive orders and you will see the political and moral agenda of the Biden administration. And you’ll see it transparently. But there’s another big issue concerning executive orders that we need to understand. And that is that the chief executive can change those executive orders at any time. That’s why pro-life advocates have been so disturbed by President Biden’s withdrawal of the Mexico City policy. It had been put in place by an executive order by President Ronald Reagan, in defense of the unborn. And as soon as there was a Democratic president, William Jefferson Clinton, that was reversed, as soon as there was another Republican, it was put back in place. Once President Obama was in office, his pro-abortion politics were translated into pro-abortion executive orders. That was reversed by president Donald Trump for the four years he was in office. And now much of this has been reversed once again.

So what we’re seeing is the fact that executive orders have expanded, given the expansion of the federal government and the expansion of the presidency. They have expanded far beyond the constitutional vision of the founders of this nation. And you have also seen where presidents have stepped in because of a political vacuum, where Congress is not legislating. President has now step in to issue executive orders, and they love to call ceremonies where they sign these executive orders with an audience watching they sign them theatrically. But all it takes is the signature of the next president to reverse those executive orders.

But here’s something else for us to consider, these executive orders come by the authority, the nation’s chief executive, the president of the United States. They are not negotiated with Congress. What does that tell us? It tells us that we really find out the political and moral character of a president by the executive orders that the president signs. No president can say that he was constrained by any external force or authority to set this policy. No, he is the nation’s chief executive. And as Harry Truman sign on his desk famously reminds us, “The buck stops here.” And that means that presidents own their executive orders.

You find out who a president thinks he works for when you see the executive orders that he signs. And when you see a flurry of these executive orders at the beginning of a president’s term, you see the signals that he’s trying to send. President Biden is sending extraordinarily liberal signals by his executive orders on issues, including the array of LGBTQ issues, abortion, you go down the list. It’s really clear that he is sending a signal, this is a liberal administration. And thus far on some of these issues, more liberal than any that has come before.

But then again, President Biden, when he was candidate Biden said that if elected his administration would be the most progressive, he meant the most liberal of any in history. And if his first few days are any indication, this president intends to use executive orders like no other president in recent history. Yes, we come back to this baseline fact again, elections have consequences. And until there is a different chief executive, President Biden’s executive orders will stand. One of the thing to keep in mind here is that Congress really does bear responsibility to step in and at least take responsibility for these issues.

We also need to understand that presidents can overreach when they act outside their constitutional authority and in violation of the laws of the United States in handing down an executive order. This is what President Barack Obama did when it came to DACA. That is the legislation that didn’t get passed, that became an executive order, when President Obama ordered the deferred action on children who have been brought into the country illegally by no act of their own.

Now there’s a lot to think about behind this, for one thing, there’s actually rather significant bipartisan support for some kind of legislation to make it possible for many of these young people, if not all of them, they qualify to stay in the United States. That’s another issue for us to discuss. But the point is this, in his first term, President Obama said that he could not merely establish the DACA plan by executive order because Congress had acted to the contrary and thus it would be unconstitutional. But then voila, when he’s running for reelection, he changed his mind and issued an executive order in the shape of DACA. Now, again, the DACA issue is debatable. What’s not debatable is that President Obama acted in a way that he himself had indicated was unconstitutional. Sadly, some federal courts have upheld his action.

Again, the DACA issue on its merits is a separate discussion. The point here is that President Obama was right the first time when he indicated that acting in contradiction to congressional legislation is unconstitutional. He was right, but later he decided to do it anyway because it was politically expedient, but it’s very politically and constitutionally costly for the United States. But elections matter, executive orders matter, and as we can, well, see by now executive orders sometimes, just think about the abortion issue, come down to life and death. Think about it.