The Aftermath

What will be required of Democrats the next time they are in power?

Like a lot of people, I was shaped by the Obama Administration. Those first few years, when Democrats had huge majorities in both the House and the Senate, saw the passage of the most robust legislative agenda in generations. That agenda was a cocktail of policy and institution building. The Administration was successful in pushing through the Affordable Care Act, which became widely popular after a bumpy start. Separately, Obama Era Democrats clearly understood the importance of institution building. They leveraged their mandate to create the Consumer Financial Protection Bureau (CFPB), an independent agency with new responsibilities in the realm of consumer protection and financial regulation.

Coming of age in the Obama Era probably influenced my trajectory as an institutions guy in the legal academy. Whether its Congress, courts, or federal agencies, I have always been enamored with the potential of reordering politics and political economies by jumpstarting new institutions. I saw socio-economic problems as invitations for institution building and effective policymaking. I looked to the legacy of the Obama Administration as inspiration.

And then I grew up . . .

Now I am much less sanguine about the potential of institution building and policy in our political moment (or, at least what is on the table). This turn in my thinking came out in a big way when I was reading a recent post on the Law and Political Economy Blog. The LPE folks asked six Biden Era officials “to identify a policy they worked on during the Administration, reflect on why it might not have landed with voters, and imagine what a more ambitious, progressive, and ultimately successful policy alternative might look like going forward.” This setup immediately caught my eye because of the heavyweight participants and the forum. I have a lot of admiration for the LPE folks. They’re the component of the American legal academy that’s most interested in institutions, ideas, and political regimes. In other words, their content is often right up my alley.

Elizabeth Wilkins wrote about anticompetitive behavior and the need for the Centers for Medicare and Medicaid Services to actually utilize their mandate of ensuring that contract terms for pharmacies are “reasonable and relevant” against pharmacy benefit managers’ practices that force pharmacies to lose money. Chiraag Bains argued for a resurrection of Biden’s “whole-of-government equity agenda” with a much better way of explaining to the American people that the agenda was not merely a means of penalizing white folks. Bharat Ramamurti wants more creativity in how Democrats tackle rising housing prices. Basically, what we need is a cocktail of “allowing buyers to assume the existing lower-rate mortgage on a home when they purchase it,” massive investments in affordable public housing, and much more. And Sabeel Rahman (a legal scholar who I greatly admire and whose ideas I rip off at every opportunity) eschews the other posts’ emphasis on policy in favor of institution building. He argued that a future progressive administration “should set its sights even bigger, imagining the formation and reformation of agencies themselves, looking to create anew their authorities, missions, jurisdictions, and structures.” Sabeel continues,

[In past instance of federal agency building], endowing a new institutional structure with broad authorities, dedicated resources (both in terms of budget and staff), and with a clear mission and mandate not only enabled new forms of public-protecting regulations, but also altered the broader political economy of policymaking by establishing new centers of policymaking activity and new discourses in which public harms could be discussed and remedied.

Reading through these posts, I felt a slowly building dread. The blog post existed in a rather unique political environment. Elon Musk has overseen the firing of thousands of government employees, gutting institutional capacity every week. Entire agencies established by Congress are being shuttered. And, more recently, the Republicans in the House of Representatives are pushing forward a budget plan that delivers tax cuts, cuts Medicaid, and will add trillions to the federal deficit.

What we’re seeing is a full-scale assault on state capacity. And I worry that we’re not appreciating what the aftermath of Trump is going to look like. State capacity at the federal level will likely be devastated. It will take more than a single presidential administration to restore government’s ability to deliver on its obligations to the public good. The simultaneous assault on the public fisc will ruin our ability to fund progressive policies for a generation or more. And cutbacks to important services like Medicaid will only exacerbate the underlying socio-economic precarity that contributed to Trump’s rise.

All told, we’re not dealing with something that can be remedied in the realm of normal politics. The vast majority of those LPE posts were bold policy fixes that will require state capacity to implement. The state will be so hobbled after the current administration, that its ability to deliver on basic goods will be undermined. We’re talking about a huge credibility gap in recruiting public servants that will likely take generations to fix. As a result, we’re facing the further erosion of the public’s faith in government generally and expertise-based authority specifically. And that’s before we get to the fact that the state as it existed before Trump was submerged. People do not see the policy changes in real time. And time is not something we have amidst competitive elections and an international slant towards authoritarianism.

This problem was definitely baked into the prompt’s emphasis on policy change. It’s noteworthy then that Rahman cleverly avoided the prompt and issued a call for aggressive institution building. Seeing the problem with an emphasis on policy in this moment, Rahman asks us to shoot higher:

To be sure, considerable good policy can be made through simpler and less structurally-transformative mechanisms like more engaged forms of presidential coordination and agenda-setting. But a bolder and more ambitious approach would push for the creation of new agencies altogether, with clear mandates and modern tools to better advance some of these objectives under contemporary conditions.

I still think, like Rahman, that institution building at a certain scale necessarily reorders our politics and extant political economies. As he says, “the mere existence of a CFPB or an FTC or something like Title VI obligations enables a different kind of advocacy, public discourse, and politics that puts questions of economic and social equality in the foreground.”

But I have problems with Rahman’s prescription. First, Trump has shown the world that Progressives have nothing to shield and protect their institutional creations, even in the short run. That magic trick, having once been performed, will be impossible to undo without a major reworking of the American political system. The ongoing pillaging of the CFPB shows that there is very little to stop a Republican President from undoing the work of hard-fought legislative accomplishments. If you tried to insulate federal agencies from presidential control, you’d be smacked down by the Supreme Court, which has invested its whole being in a presidentialist agenda (come what may).

Second, Rahman’s prescription avoids the ongoing crisis in authority. The reason that presidentialism and juristocracy are the only games in town is that all other competitors have been stymied. Most important for Rahman’s prescription, we’re facing a longstanding repudiation in expertise-based authority. The American people do not consistently trust the public administrators who man the “deep state.” The petite bourgeoisie of the GOP—that guy who owns a Ford dealership in Arkansas—genuinely resent an expert class that seems foreign to them.

I don’t have all the answers. I’m merely suggesting that progressives’ usual cocktail of policy and institutions fundamentally misunderstand the moment. There should be space for those tools to be discussed and honed. But we need to start thinking much bigger. This Substack is an attempt on my part to build a space for myself so that I can start tackling some of those bigger problems. In future posts, I’ll try to outline some ideas that are more about reordering American politics.