Elizabeth Warren campaigns in New Hampshire in September.

Elizabeth Warren campaigns in New Hampshire in September. Maverick Pictures/Shutterstock.com

2020 Democrats Are Already Giving Up on Congress

They know their grand progressive plans could stall out on Capitol Hill. So they’re embracing executive authority instead—just like the man they hope to defeat.

Last summer, Senator Elizabeth Warren unveiled legislation to wipe out as much as $50,000 in student-loan debt for tens of millions of Americans. Pushing the $640 billion measure through even a Democratic-controlled Congress would be a punishing task, but the presidential hopeful had secured a big Capitol Hill backer in Representative James Clyburn of South Carolina, a power broker in a key early-primary state and the third-ranking Democrat in the House.

Earlier this month, however, Warren effectively cut Clyburn, and the rest of Congress, out of her debt-relief plan. On the eve of the most recent Democratic primary debate, she announced that on her first day as president, she would order the cancellation of the student debt herself, using a broad interpretation of existing laws. Lawmakers could sit back and watch. “We can’t afford to wait for Congress to act,” she wrote.

Most Democratic presidential candidates, including Warren, have vowed to show more deference to Congress in seeking authorization for the use of military force, and they’ve condemned President Donald Trump for shirking checks on his executive authority.

But as they confront the possibility that their grand progressive plans could stall out on Capitol Hill, several of the party’s past and present White House contenders have signaled that they share Trump’s expansive view of presidential authority and his impatience with—if not his outright disregard for—the legislative branch. And that has caused alarm among Democrats who don’t want their party to mimic a man who famously declared, “I alone can fix it.”

Senator Bernie Sanders of Vermont is reportedly considering dozens of executive orders he could sign to go around Congress, and he’s already promised to implement major parts of his immigration plan unilaterally if it stalls on Capitol Hill. Before dropping out of the race late last year, Senator Kamala Harris of California vowed to enact her gun-control agenda herself if Congress didn’t act within 100 days of her inauguration. Even former Vice President Joe Biden, who has campaigned as a legislative consensus-builder and has been dismissive of his rivals’ plans to circumvent Congress, has proposed an aggressive use of executive orders.

This embrace of executive authority has disappointed, but not surprised, advocates who want to reverse a decades-long shift in power from a largely dysfunctional legislative branch to an ever more muscular executive.

“Executive-branch circumvention of Congress is what everyone expects by now,” says Philip Wallach, a senior fellow in governance at R Street, a libertarian think tank. It has been a decade since Congress last enacted a major new policy program, aside from a few big tax cuts and spending bills, he notes.

The past three presidents have tried to push the bounds of executive authority. In the years after 9/11, civil libertarians and some Democrats criticized the George W. Bush administration for its expansive interpretation of the president’s power to act in the name of national security. Republicans took President Barack Obama to court over his move to grant legal status to millions of undocumented immigrants after Congress refused to pass a comprehensive bill providing a path to citizenship. (The Obama administration rejected an even wilder idea of minting a trillion-dollar coin to obviate the need for Republican votes to raise the debt ceiling.)

Congress is at fault too. Over the years, lawmakers have written overly broad laws that have given executive agencies wide latitude to interpret and implement them as they see fit, argues Elizabeth Goitein, the director of the liberty-and-national-security program at the Brennan Center for Justice, a left-leaning think tank. Many disputes over such laws end up in the courts, leading to years of litigation, as has been the case with the Affordable Care Act, for example. “Congress has essentially abdicated the job of lawmaking and has left that to the president,” Goitein told me. “Presidents have also taken to stretching the bounds of those delegations and going beyond what Congress has authorized.”

Warren’s advisers told me she views Congress as a partner, noting her support for repealing the authorizations of military force that were passed in 2001 and 2003 and that presidents have used to justify military actions across the globe in the decades since. But Warren is also a candidate who conceived of and built from scratch an entire federal agency, the Consumer Financial Protection Bureau, that was designed to be insulated from congressional sabotage and oversight. For years, she has pushed the executive branch to be more aggressive about using its vast power to improve people’s lives. “She has really thought deeply about how you can use all the tools of government to actually deliver for people,” Bharat Ramamurti, the campaign’s deputy director for economic policy, told me.

Still, none of the candidates’ domestic proposals for executive action would have near the fiscal impact of Warren’s cancellation plan for student debt, which would rival the $700 billion bank bailout Congress approved under duress in 2008. Her pledge to act unilaterally annoyed Democrats like Representative Scott Peters of California, a leader of the moderate New Democrat Coalition, who warned his party’s contenders against trying to match Trump’s contempt for the balance of powers. “We do not need another wannabe monarch,” he tweeted after Warren unveiled her plan.

Experts at Harvard Law School’s Project on Predatory Student Lending, in a seven-page letter released by the Warren campaign, argued that legal authority to cancel student debt without congressional action exists under the Higher Education Act. The law, they wrote, grants the secretary of education “unrestricted authority to create and to cancel or modify debt owed under federal student loan programs.” On day one of her presidency, Warren said, she would direct her education secretary to use that authority to wipe out up to $50,000 in debt for borrowers on a sliding income scale. That a president could erase $640 billion worth of unpaid loans with barely more than the stroke of a pen was news to Clyburn and other co-sponsors of the debt-relief legislation in Congress. “She didn’t indicate that to me at all,” Clyburn told me.

In all likelihood, conservatives would immediately challenge such a move in court, leading to a lengthy legal fight. But whether the law is ultimately on Warren’s side is beside the point, Representative Peters told me. “Certainly something that big has to come to the Congress,” he said. Peters, who noted that Obama acted on immigration only after he had made an extensive effort to pass a bill on Capitol Hill, found it particularly galling that Warren planned to cancel such a large amount of student debt before even trying to build legislative support as president. “Whatever happened to the first 100 days?” he asked. “Enough of the dictators, whether they’re left or right. That’s not what this country is about.”

Representative Ro Khanna of California, a Sanders supporter who co-sponsored Warren’s bill in the House, told me it was his “strong preference” that a new president first try to enact student-debt relief legislatively. “If there are actions that she could take to provide some relief that she's convinced will be upheld as constitutional in the courts, then I’d support that,” he said. “But I think what could be a blow is if we tried something and then it’s held as unconstitutional and we don't have a legislative strategy.”

Khanna noted that although the laws Obama passed through Congress have largely survived, Trump has reversed much of the progressive policy his predecessor enacted through executive action and by chipping away at regulations. “If you want the policy to stand the test of time, it usually means the legislative branch,” he said. “I don't think we should compromise our respect for the congressional branches, and we should recognize the dangers of executive overreach.”

Warren’s advisers told me her plan to act “on day one” did not mean she was giving up on the legislation she introduced with Clyburn. "Her student-debt legislation is complementary to the executive action, and she will continue to fight with Representative Clyburn to pass it,” said Julie Morgan, the campaign’s deputy director of domestic policy. “Just like she wants legislation to break up Big Tech while also having regulators use existing authority to unwind anticompetitive mergers. It’s not an either/or.”

As for Clyburn, the 28-year veteran of the House may have been taken aback by Warren’s abrupt announcement that she could enact their student-debt plan all by herself if she wins the presidency. But he wasn’t offended by the idea, nor was he necessarily opposed to it. “I would remind you that slavery was ended by executive order,” Clyburn replied when I asked him whether he was worried about executive overreach. “The armed forces were integrated by executive order. So I'm the last person to criticize anybody for using the executive order to do that which Congress won’t.”