Joe Biden’s Assembling a Team

There have been more than 400 Coronavirus deaths today with 104,000 cases reported. It’s clear we are well into the second wave of Coronavirus, and in the midst of this, Joe Biden has announced a new task force he has assembled to tackle this issue.

In a move that telegraphs the way he is going to be treating issues that impact the American public, the 12-member Coronavirus task force consists of public health officials including Rick Bright, a member of the Trump administration who blew the whistle that the Trump administration ignored his early warnings about the pandemic. This team is also led by former Surgeon General Dr. Vivek Murthy, former Food and Drug Administration Commissioner Dr. David Kessler, and Dr. Marcella Nunez-Smith, a professor at Yale School of Medicine.

With these names, Joe Biden is sending a clear message to the American public. First, he is going to believe the scientists. While Bright may have been ignored by the Trump administration, Biden’s inclusion of this immunologist shows that he will accept and listen to those who will present uncomfortable truths. The co-chairs — Dr. Murthy, Dr. Kessler, and Dr. Nunez-Smith — also shows Joe Biden’s reliance on experts in their fields to present the necessary information to help the nation weather this pandemic.

This task force shouldn’t be remarkable. It’s an incredibly low bar for a president — or president-elect — to assemble a team of experts to tackle a national crisis. And yet, despite this low bar, Donald Trump has repeatedly failed to clear it. The White House Coronavirus Task Force, when it was created on January 29, was chaired by the Secretary of Health and Human Services Alex Azar. He was quickly replaced by Vice President Mike Pence on February 26.

Vice President Pence is no stranger to handling pandemics. As the governor of Indiana, Pence’s response to the growing spread of HIV in the state only made the situation worse through laws designed to punish the possession of needles and refusing to enact public health policies proven to decrease HIV transmission until it was very late in the pandemic.

Aside from the official White House Coronavirus Task Force, there was also the unofficial task force — lead by Donald Trump’s son-in-law Jared Kushner — that was known for fudging numbers and purposefully refusing to make recommendations because “that’s [a blue state] problem”.

Just the comparison between these task forces alone shows Biden’s strategy is to surround himself with competent advisors and to take them seriously. This also leads into a lot of speculation about who Joe Biden will place in his cabinet when he officially enters the White House. We do not really know exactly who he will choose, but I think it is safe to say he will not likely be choosing from members of the Senate.

The Senate does have many great individuals who are more than capable to fulfill the roles in the Cabinet. Many progressives have been hoping to see Elizabeth Warren elevated to a cabinet-level position, for example, however there is one very clear fact that would prevent this. The Democrats cannot afford to risk any seats in the Senate right now. Even if they don’t win the Georgia run-off elections, the 2022 midterm election map has 34 Senate seats up for re-election with 21 of those seats currently being held by Republicans.

The Democrats will be fighting hard to regain control of the Senate, and when those margins could come down to only one or two seats, the risk of losing Elizabeth Warren’s comfortable blue vote to a possible Republican is too great. Warren, after all, holds the seat formerly held by Republican Scott Brown. Brown won his seat in a 2010 special election after the death of Democrat Ted Kennedy in 2009. This had massive political implications for the Obama administration and meant they could not pass as progressive an agenda as they wanted.

All of that is to say Elizabeth Warren and most of the Senate is likely out. The Biden administration will not want to see a repeat of that, and much of what is on the agenda will require a Senate that is at the very least not obstructionist.

Instead, it could be possible Biden will pull from his previous political opponents who do not hold seats that are as politically important right now. Pete Buttigieg, for example, is not only a retired member of the Navy Reserve, but a highly visible name that could be added to the cabinet. Jason Kander, a Missouri Senatorial candidate from 2016 and president of the Veterans Community Project could also be a good fit for a role perhaps in Veterans Affairs.

But that isn’t the interesting part of this story right now. Ultimately, who Biden will be able to nominate to his cabinet is complicated by the Senate in another way. The Senate plays a constitutional role of “advise and consent” for cabinet positions. This normally means the president nominates members of their cabinet and the Senate would vote on them. That said, there is absolutely no requirement that the Senate vote on these positions.

If Republicans maintain control of the Senate, there is a very large likelihood Mitch McConnell, the Senate Majority Leader, will not allow the cabinet positions to even come to a vote. This is much the same way he did not allow a large number of President Obama’s judicial nominees to even come to a vote, and the same way McConnell ensured Merrick Garland would not fill Justice Antonin Scalia’s seat on the Supreme Court.

It is a perfectly legal strategy for the Majority Leader to take in this situation. Mitch McConnell would also be allowed to not let the Senate enter recess, thereby preventing recess appointments in perpetuity. As has been decided 9–0 by the Supreme Court in 2014, Biden would not be able to use recess appointments if the Senate does not go into Recess. So things look very tough for Biden in this situation, but they aren’t hopeless. There is actually a way Biden can fill the cabinet level positions.

Section 3345a of the Vacancies and Appointments subchapter in the US Code states that the President “can select a senior “officer or employee” of the same executive agency, if that employee served in that agency for at least 90 days during the year preceding the vacancy”. This means Biden could theoretically fire everyone in the relevant agency down to the level of people you can trust, then appoint someone from that level to the cabinet level position.

This additionally means Biden can create new positions in those departments at GS level 15 salary (the highest level of government salary), then place exactly who he would like to fill his cabinet in those new jobs in each department. After 90 days, Joe Biden could appoint those employees to his cabinet as “acting” members of the cabinet, which means they can hold that position for a year. After that year, Joe Biden would need to appoint another employee from that agency to the role to the “acting” position.

Additionally, the position held by these individuals is only held so long as the Senate does not take action on a nomination submitted to it. This puts McConnell in a position where he can either obstruct Biden’s nominations and let Biden appoint whomever he likes as the “acting” members of his cabinet, or McConnell can put Biden’s nomination on the floor for a vote in the Senate and hope there are no defections on the Republican side that might vote for that nomination.

While it would not be ideal to, for example, have two separate Acting Secretaries of State in two years, this strategy just might work to buy time until the 2022 midterm elections where, with enough hard work by the Democrats, Mitch McConnell might just become the Senate Minority Leader instead of the Senate Majority Leader and Joe Biden will be able to push his legislative agenda through Congress.

It is incredibly depressing the lengths Joe Biden will likely have to go through to fill positions that are, in most administrations, early and uncontroversial appointments. These positions are necessary in order to allow the government to function properly, and Mitch McConnell will likely be willing to play a game of chicken in the hopes that the government will fail because of his actions but under a Democratic president so he, and his fellow Republicans, can then point to that same brokenness and say “Look how broken the government is, only Republicans can fix it.”

Importantly, however, there is a way we can stop things from getting to this point, and that is to help Jon Ossoff and Raphael Warnock win their Senate Runoff Elections in Georgia. We can do that by donating to their campaigns now and volunteering to phone bank or text bank and mobilize as many Democrats as possible to vote in these elections.

With any luck, and a lot of work on the part of volunteers and the voters in Georgia, Joe Biden will be able to enact the legislation he promised to the American people. The first step will be ensuring Mitch McConnell has as little power to obstruct as possible.