During his run for office, President-elect Joe Biden let out that he was aspiring to have an “FDR-size presidency.” But now that the dust has settled on the election, the Democrats’ failure to retake the Senate has taken a considerable amount of wind from those sails. Nevertheless, a nation rocked by the economic ravages of the coronavirus pandemic can’t wait for more elections. Biden will have to make the best of what’s at hand. The good news is that those hands are far from empty.
Even with a hostile Senate, there is at least one executive order that could do more to transform the country than single-payer health care or the Green New Deal—indeed, an order that could help pave the way toward those goals. Biden could require as a condition in every federal contract that every supplier of a good or service have a collective bargaining agreement—unless there is no such supplier that can perform that contract at a reasonable cost or comparable quality. Such an executive order would do more to revive the labor movement than many a federal law—and it wouldn’t require Mitch McConnell’s permission.
Even if the order is drafted as a nudge, instead of an iron-clad requirement, it would be one sizable nudge. In fiscal year 2018, the federal government spent more than $550 billion annually on these contracts—about $195.8 billion by civilian agencies and $358.3 billion by the Department of Defense. That amount climbs every year—and Biden is proposing to spend another $2 trillion over four years for a clean energy infrastructure.
Here is the question: Does the Procurement Act give the president the authority to issue such an executive order, making it a condition of a party to a federal contract to have a collective bargaining agreement in place, or at least giving a preference to such a party?
Some may recall that the Clinton administration tried to bar contractors who replaced striking workers, and a federal court struck it down. But that decision, in Chamber of Commerce of the United States v. Reich, reached by a conservative panel, helps to show the way that an even bolder and more far-reaching Biden-era executive order would be legitimate. In effect, Reich says, it’s all a matter of giving the right reason.