April 29, 2021
The New Republic
During his campaign, Joe Biden repeatedly held out the promise of an FDR-size presidency—the better to counter the misrule of the Trump administration. It can be said that he has already made some admirable strides in that direction with the passage of the American Rescue Plan. As Biden reaches his 100th day in office, however, he may soon find that comparisons to his self-identified North Star don’t quite measure up. Roosevelt, after all, famously signed 15 major bills into law during his first 100 days, compared to Biden’s one (which isn’t to diminish the size or importance of that single accomplishment). Biden and his allies can, of course, point to considerable obstacles that Roosevelt didn’t need to surmount, such as the Democratic Party’s slimmer margins and the fact that the president does not literally control Congress.
But what of his stewardship of the institution he leads without impediment? In the executive branch, where Kyrsten Sinema and Joe Manchin pose no obstacle, is Biden using his power to its fullest potential? Not yet: One hundred days into his term, Biden hasn’t even finished sweeping out the corrupt officials—like IRS Commissioner Charles Rettig—who have been left over from the Trump era. If Biden is serious about being the next FDR, he should be prepared to deploy executive branch power—from regulation to enforcement—early, often, and maximally toward his goals. Ridding the executive branch agencies of those officials who might seek to undermine rather than advance his governing agenda is a task behind which he needs to put that New Deal muscle.
When a president leaves office, nearly 4,000 political officials presumptively go with him, leaving room for the new commander in chief’s team to take the reins. However, a small number who serve in positions with set terms stay in place. Some of these officials, such as the commissioners of the Securities and Exchange Commission, cannot be removed from their positions except for cause, but many others, such as the commissioner of the IRS, serve at the pleasure of the president and can be removed and replaced at any time.
As a matter of convention, they generally are not, but the Trump administration was anything but conventional, a fact that Biden and his team would do well not to forget. Consider, for example, that at least one Trump administration official who is still in power, FBI Director Chris Wray, assumed his position after his predecessor, James Comey, was fired for disloyalty. And loyalty tests were not just reserved for holdovers from the Obama administration. The Trump White House systematically assessed its own appointees’ loyalty to the president. With very few exceptions, those who dared to question, contradict, or even implement the administration’s agenda with insufficient enthusiasm and vigor were removed.
For this reason alone, Biden would have been perfectly justified in removing every Trump holdover within his reach on day one. And indeed, as early as last November, the Revolving Door Project (where I work) was arguing that he must. But even if this generalized disqualification was not ground enough for Biden to take action, Trump holdovers in disparate corners of the executive branch have helpfully been building the case for their own removal.
There’s Rettig, the IRS commissioner who, in addition to defending Trump’s refusal to release his tax returns, has diligently used his position atop the tax collection agency to tilt our tax system further in the favor of the wealthy and corporations. Under his tenure, IRS audits on top earners and companies have continued to drop as those on Earned Income Tax Credit recipients have climbed. As The New York Times reported, Biden plans to pay for his American Families Plan by increasing audit enforcement of high earners, a plan to which he will commit $80 billion. There’s no reason to believe that Rettig will be a good shepherd of this effort.
Trump holdovers also still control the Social Security Administration. Since being confirmed in the summer and fall of 2019, Commissioner Andrew Saul and Deputy Commissioner David Black have been on the attack against Social Security, with new regulations that limit access to Social Security Disability Income, reductions in staffing, and an anti-union campaign. Biden is seeking to raise a considerable amount of revenue for the Social Security fund, among other reforms to the system; he’ll need more allies in place to succeed.
And, of course, there is Wray, the FBI director. Under his leadership, “Black Identity Extremists” were repeatedly listed among the top terrorism threats in the country, despite zero evidence of even a single attack from this phantasmic threat. After some vigorous pushback, the Bureau dropped the loaded term but not its focus on this fictional problem. It was only in February 2020 that Chris Wray’s FBI finally designated white supremacist violence a top concern. Several tragic examples in the ensuing year, not least among them the January 6 attack on the Capitol, suggest that the recent shift may be more for show than a real commitment.
These examples just scratch the surface. There are also lesser-known political appointees, senior career officials who were promoted to leadership positions or improperly hired under Trump who have misused or abused their positions, as well as roles where it is unclear if Biden has the legal authority to remove occupants.
Nevertheless, leaving so many positions of power in the hands of those who have so consistently demonstrated their fealty to Trump’s agenda, and their disdain for Biden’s, is an unnecessary gamble with little appreciable upside. And Biden has already been made to pay out on this bad bet as several of these officials have already, and predictably, undermined his presidency.
As millions across the country received their most recent round of stimulus checks, for example, recipients of Social Security Income were made to wait, thanks to the Trump holdovers atop the agency. Only after Congress stepped in to apply pressure did they relent and release the information the IRS needed to distribute the $1,400 checks. The most recent round of stimulus included a new infusion of support to the recipients of SSI.
Elsewhere, at the Office of the Comptroller of the Currency, Acting Comptroller Blake Paulson is defending and advancing key aspects of the Trump administration’s regulatory agenda. Although Paulson is technically not a Trump appointee, he is in his position thanks to one: Then–Acting Comptroller and Trump appointee Brian Brooks elevated Paulson to be next in the line of succession last summer. His actions in the three months since he took control of the agency leave little question as to why. Paulson has continued to approve national bank charters for fintech companies—a highly controversial move—on the basis of interpretive guidance Brooks released just before leaving office. He has also lobbied Congress not to repeal the agency’s recent “True Lender rule,” which allows the payday loan industry to avoid states’ interest rate caps, paving the way for loans at 179 percent interest nationwide. As many across the country continue to struggle, thanks to the yearlong pandemic-fueled downturn, moves like these, which remove crucial regulatory guardrails, could have particularly dire consequences.
The Biden administration will face a broad array of complex problems over the hundreds of days to come, but headaches from Trump holdovers who can be removed at any moment need not be among them. With a simple request for resignations, Biden can eliminate the risk that these figures undermine his agenda.
If Biden is serious about leading a “whole-of-government” approach on everything from climate change to racial justice to labor rights, he must also move quickly to elevate acting officials and permanent nominees who will use these agencies’ considerable powers to advance the public interest. With new leadership, for example, the IRS could not only be working toward successful implementation of the child tax credit but begin looking to shift its resources toward auditing the wealthy, while also advocating for a larger budget before Congress. The Office of the Comptroller of the Currency could not only be undoing disastrous guidance and rules released under Trump but strengthening measures such as the Community Reinvestment Act. U.S. attorney’s offices across the country, many of which are currently in the hands of Trump’s U.S. attorneys’ right-hand assistants, could instead be making strides for criminal justice reform. A new head of Federal Student Aid could finally bring predatory student lenders to heel.
Biden has already demonstrated that he understands the risks and rewards associated with keeping and removing Trump holdovers. On his very first day in office, he swept out Consumer Financial Protection Bureau Director Kathy Kraninger and National Labor Relations Board General Counsel Peter Robb, both of whom had been systematically destroying their respective agencies from the inside. Now, with acting leaders in place, both agencies are hard at work reversing the damage and rising to meet current and oncoming crises.
Biden may be at a disadvantage legislatively, but when it comes to executive power, he faces a terrain of possibility far wider than Roosevelt did in 1933. Biden is inheriting a vast array of institutions, built during the New Deal and after, with the regulatory power and administrative muscle to make transformative change happen—in some cases, very quickly. Time is of the essence: For every day that passes with Trump holdovers in place, there are further opportunities for these agents of the prior administration to add rot to the roots of Biden’s presidency. An FDR might advise the new president to “act now.” The sooner Biden cleans the Trumpian remnants out of the executive branch, the quicker those agencies will be to deliver his agenda.