I’ve been told that Joe Biden, soon the 46th president of the United States, is a “creature of the Senate” so many times that I’m starting to wonder if there’s some kind of spawning ground beneath the Dirksen Senate Office Building. Biden, we are told, can work with Republicans, make legislative deals, and usher in a new era of comity and bipartisanship just on the strength of his Senate experience and relationships.
But I’m not so sure. That’s because I know that a body in which Mitch McConnell holds any kind of power will frustrate the plans of even the most adroit Democratic leaders. I know, too, that any bipartisan “Problem Solvers Caucus” will solve none of the actual problems facing this nation. And I know that watering down legislation until it’s palatable enough for Joe Manchin and Kyrsten Sinema to drink will drown any meaningful liberal agenda.
If Biden is to keep his campaign promises, especially the ones he made to the Black voters who saved his campaign and installed him in office, he will have to do so through executive action.
As of this writing, Donald Trump has signed 204 executive orders during his four years in office. By comparison, Barack Obama signed 276 during his eight years as president. I’m no mathlete, but any Republican who complains about an “imperial presidency” can help themselves to a warm glass of shut-the-hell-up.
Biden needs to adopt a Trumpian pace for executive orders. We’re facing a health crisis and an economic crisis that will have metastasized into a food crisis and a homelessness crisis by the time he takes office—largely because of Senate inaction and callousness. I expect Biden will do whatever he can with a stroke of a pen to manage the health crisis, not least because it is still, rightly, dominating the news cycle. But what’s fallen out of the news, at least in most white media circles, is the ongoing crisis of police terrorism and racism directed at members of the Black community.
Biden promised to do something about this. Now that he finally can, he must not be allowed to ignore these desperate calls for justice, as Democrats normally do the minute they regain power. Instead, he needs to grab his pen and begin implementing change through executive action.
I spoke with Alicia Garza, a cofounder of Black Lives Matter, and she had an idea that would allow Biden to bypass an inert Senate: declare a state of emergency around “racialized policing.” She said such a declaration would allow him to withhold policing monies from states that have cognizable racial disparities in police outcomes. He could instruct states to adopt antibias and de-escalation measures and training. He could even instruct police to develop use-of-force protocols. Most policing is strictly in the purview of state law. Yanking on the purse strings is one of the only tools the federal government has.
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This is not an idea invented by activists. Former US attorney general Jeff Sessions had the same thought—and tried to implement it—when he threatened to punish sanctuary cities by withholding public safety grants. Back then, I didn’t hear a peep from Republicans worried that Sessions was trying to “eliminate” the police. I assume they would therefore support this use of executive power from the Biden administration, unless they’re hypocrites.
Speaking of hypocrisy, it is worth remembering that Trump declared a state of emergency when Congress wouldn’t fund his border wall. He then misappropriated billions of dollars from the defense budget to start construction on it. If Trump can steal billions of dollars to pay for his racist fantasy, Biden can certainly withhold billions until police departments figure out how to stop killing Black people.
Then there are the things Biden can do immediately to change the actions of federal law enforcement. I spoke with Radley Balko, a journalist and police reform advocate, and he suggested establishing national use-of-force guidelines and transparency requirements. Those new rules, he said, could be imposed directly on every federal law enforcement agency, from the FBI to the Drug Enforcement Administration to the Bureau of Alcohol, Tobacco, Firearms and Explosives. They could include immediately banning the use of no-knock warrants and choke holds at the federal level, as well as imposing reporting guidelines and racial-data collection requirements throughout the federal government.
Balko also offered a suggestion that would really change how the federal government treats police officers accused of brutality or malfeasance: instruct the solicitor general to stop defending the police in brutality and qualified-immunity cases in federal court. Traditionally, when issues are litigated at the federal level, the solicitor general represents the government, which in police misconduct cases means the cops. But that’s not a law; it’s a norm. “Biden’s solicitor general could sit those cases out,” Balko said. “Or, God forbid, even weigh in on behalf of people abused by police.”
This is what the Obama administration did for gay rights: It refused to defend the Defense of Marriage Act when the law was challenged in federal court. Eventually, the Supreme Court ruled DOMA unconstitutional in United States v. Windsor. What the government chooses to defend—and what it deems indefensible—matters.
Then there’s the low-hanging fruit that Biden can deal with on his first day in office. The Trump administration restricted the use of consent decrees, which have been used by the Justice Department to force localities to adopt better policing standards to avoid federal civil rights litigation. Biden’s attorney general could bring them back. Biden could also reinstate Obama’s executive order restricting the sale of excess military equipment to local police. That way, the next time the cops kill an unarmed Black person, the protesters who rise up might not be met by police in armored personnel vehicles who are decked out for war.
Because there will be a next time. And a time after that. The cops are not done killing us. The scourge of police violence against Black and brown communities is not going away.
Neither, however, are elections. Soon, in 2022 and 2024, Democrats will go back to Black voters, demanding our support and arguing that they’ve done all they can to stop paramilitary forces from terrorizing our neighborhoods. When they do, I’ll want to see the receipts. I don’t want to hear Democrats despairing over which “slogan” people use; I want to see them addressing this crisis with actions.
Biden can change the guidelines for federal law enforcement and put immense economic pressure on state law enforcement with his signature. He said, “Black lives matter.” Now he has to prove it.
