Trump waged war against the government itself. The Biden administration must act quickly to repair the damage.
Of all the urgent tasks facing the Biden administration, among the most pressing is to unwind former President Donald Trump’s four-year effort to “deconstruct the administrative state.”
From headline-grabbing policies like caging children at the southern border to stealth rollbacks of climate and environmental regulations, politicizing the role of science and leaving hundreds of key political appointments vacant during a pandemic, the consequences of the Trump administration’s governing philosophy will take swift, sustained and systemic efforts to mend.
In the dwindling months of his presidency, Mr. Trump pushed through a series of so-called midnight rules, surreptitiously sliding politically controversial and unpopular legacy items under the wire.
These recent rules, for example, would expand the methods of execution in federal death cases to include electrocution and death by firing squad. They broaden the definition of “independent contractors,” allowing gig economy companies to avoid providing benefits and safety protections to their workers. They prevent immigration judges from using their discretion to close immigration cases and halt deportations, and allow federal contractors to claim a religious exemption to discriminate in hiring. They shield companies from liability for killing migratory birds and effectively ban certain methods of scientific research in the drafting of public health rules.
Although the practice has historically been deployed by presidents of both parties, Mr. Trump turned it into a sport, finalizing more rules in his last year than any other modern president and even bypassing statutory waiting periods. Between Election Day and Inauguration Day alone, the Trump administration issued 53 new rules.
Faced with this catalog of harm, the new administration has wasted no time. Just hours after being sworn in, President Biden took bold action to freeze a litany of final and pending agency regulations and signeda bevy of executive orders reversing Trump-era policies.
- Ezra Klein, Opinion columnist, argues that Biden and the Democrats must act boldly, and clearly, to help Americans in need: “You don’t get re-elected for things voters don’t know you did.”
- Claudia Sahm, an economist, writes that Biden’s stimulus plans should be open-ended and that Americans “deserve the peace of mind of knowing that relief will continue as long as they need it.”
- Ross Douthat, Opinion columnist, argues that rather than desiring large-scale change from President Biden, “a meaningful majority of Americans may be satisfied with recovery, normalcy, a phase of decadence that feels depressing but not dire.”
- Adam Jentleson writes that the president and Senate Democrats must do away with the filibuster or risk endless gridlock: “We can’t afford for the Senate to remain the place where good ideas go to die.”
- Times Readers shared their hopes for the next four years and the Biden administration.
But the scope of the problem requires more aggressive action. The Biden administration should also use the Congressional Review Act to reverse even more of the recent rules. The wins in Georgia’s Senate races — giving Democrats control of both houses of Congress as the presidency changes hands — provide the rare opportunity to use this little-known law.
The review act allows agency rules sent to Congress on Aug. 21, 2020, or later to be rescinded by bare-majority votes in both houses, with the approval of the president. The rejection of a rule further bars an agency from adopting one that is “substantially the same” in the future, making reversal more enduring than some actions the executive can take alone. To not use this tool as part of a comprehensive strategy to roll back a catalog of Trump administration regulations would be a missed opportunity.
But even this quick action will be insufficient to repair four years of damage. Truly repairing the administrative state will require the more fundamental work of restoring our federal agencies and institutions. Mr. Trump entered Washington with a deep distrust of the over two million federal employees, and his preferred approach to personnel was to rearrange a shrinking cadre of loyal staff members.
Over half of the senior positions at the Education, Justice and Homeland Security Departments simply went unfilled. Rather than sending senior nominations to the Senate, the administration recycled nearly 30 acting cabinet secretaries who served more than three times as many days as the acting secretaries of the Obama era. Morale among federal workers declined during Mr. Trump’s presidency, and career officials have given haunting accounts of their efforts to maintain democratic guardrails within agencies.
The future success of the administrative state will require restoring the dignity of public service and the value of policymaking informed by the expertise of career employees. The Biden administration should continue to move quickly to nominate and confirm key positions with experts and experienced, innovative thinkers to rebuild a neglected bureaucracy. They will need to assemble a Justice Department that returns to the tradition of operating independently of the president, revive a hollowed-out State Department where cubicles have been empty for years and staff the government with individuals who want to fulfill its promise rather than throw sand in its gears.
The Trump administration also waged a subterranean campaign against science. The Environmental Protection Agency is at its lowest staffing level in a decade, with scores of research projects stymied by the gutting of federal advisory boards and research committees. The response to the pandemic, which saw Trump administration officials sideline scientists and undermine Centers for Disease Control and Prevention data and guidelines, made clear the peril of anti-science dogma. Reversing the damage will require reinstituting policymaking processes informed by the best available data, unclouded by political considerations.
The animosity toward data has been particularly insidious in our intelligence agencies, where leaders have been publicly fired for following protocol and pressured to alter intelligence and its conclusions so as not to contradict the president’s public stances. For the sake of our national security, intelligence officials must be empowered to provide independent intelligence and encouraged to speak the truth, even when it proves politically inexpedient.
Through rebuilding the objectivity of the Office of the Director of National Intelligence, hiring expert ombudsmen and inspectors general, and restoring the integrity of intelligence, the Biden administration can push back against the politicization of analysis that has plagued recent decision-making. In her recent confirmation hearing, Avril Haines, the new director of national intelligence, vowed to release a long-withheld report on the murder of the journalist Jamal Khashoggi. Embodying the Biden administration’s fundamental shift in approach, she said simply, “We will follow the law.”
We are only just beginning to understand the extent to which the past four years have corroded our federal institutions. But they haven’t changed forever. With quick action in the first 100 days and a sustained commitment to science, intelligence and the very notion of service, President Biden and Vice President Kamala Harris can rebuild a fortified “administrative state” equipped for the 21st century.
Neil Eggleston is an attorney who served as White House counsel to President Barack Obama from 2014 to 2017. Alexa Kissinger is an attorney who served as a special assistant to Valerie Jarrett, a senior adviser to Mr. Obama, from 2013 to 2015.
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