Balancing the Present and the Future
Notes on law, governance, and other matters from Samuel Bagenstos.
When I began this newsletter, I did not want it to be simply an anti-Trump, “resistance” vehicle. I knew that the second Trump Administration would engage in outrageous, illegal behavior, but I also knew there would be a lot of people willing and able to call them out for it. I decided that I’d write about the latest Trump outrage only when I thought I had something particular to add to the discussion. I thought my interventions on the DEIA EO and the NIH indirect-cost cap satisfied that test. And there will no doubt be many other occasions when I feel moved to intervene in opposition to particular Trump actions, or to try to put them in a broader context. (I tried to do some of that contextualizing in this post, and I’ve tried to do it as well in a number of recent podcast appearances.)
The “Institutions Trap”
Over the past few weeks, Donald Trump, Elon Musk, and their henchmen have been leveling a massive, existential attack on our constitutional system and collective self-governance in general. They have targeted the government agencies that provide crucial protections of the modern state–protections against infectious disease, predation in the market, and other evils. Their mass firings are decimating if not completely destroying entire agencies. Their insistence that they need not abide by congressional spending decisions threatens basic constitutional principles. And their effort to eliminate any government entity that could provide a check against them–firing inspectors general, the Special Counsel, and the head of the Office of Government Ethics; firing (or sending to bureaucratic Siberia) many key officials at the Department of Justice and the FBI, notably including those involved in investigations or prosecutions of Trump or January 6 criminals; threatening even more firings at the DOJ and FBI–underscores their commitment to acting with impunity.
In the face of all of this, it is easy to fall reflexively into a posture of defending the institutions Trump and Musk are attacking, and to devote our full intellectual, organizational, and even emotional energies to resisting the attacks. We might think there will be ample time to critique those institutions later, and that we can start to think about building a better world only after we have successfully fought off the existential threats that our (flawed but still essential) institutions currently face.
In many ways, that defensive posture makes sense in response to the emergency we face. I’m certainly spending a large chunk of my time (both in this newsletter and elsewhere) trying to help fight off Trump and Musk.
And sometimes the flaws in the institutions under attack are basically irrelevant to, or are clearly less pressing than, the attacks themselves. For example, I’m sympathetic to the critique that USAID has been a tool of American neo-imperialist dominance of the developing world. But even if you might see the Administration’s fans nod to that critique occasionally on Twitter, that’s clearly not the reason Trump and Musk are targeting USAID–and it could hardly justify just taking away the essential food and health assistance the agency provides to people in desperate need around the world.
Similarly, I find many DEI programs too focused on corporate or management interests rather than truly advancing justice. And much of the training provided by DEI consultants lacks evidence that it works to eliminate bias; indeed, some of that training may have perverse effects. But, again, that’s not what’s motivating Trump and Musk, and their attacks on the expansive category of actions they call DEI are not in any way focused on the kinds of training programs that advance corporate interests over the interests in eliminating bias and advancing racial justice. Rather, as Jamelle Bouie has persuasively shown, Trump and Musk’s war on what they call DEI is really a war on integration, antidiscrimination, and the basic principles to which our Nation committed in the Civil Rights Era (and even the Reconstruction Era). I am more than happy to defer critiques of USAID or DEI until after we are done fighting off the Trump-Musk assaults.
But there is a cost to an exclusive focus on defending the institutions that are under attack. One problem is substantive. Many of our institutions–even the ones Trump and Musk are attacking–do require major change. In many instances, defending those institutions will not just defer until after the emergency any question of how to change them; it will affirmatively entrench the flaws of those institutions in ways that make them harder to change.
Perhaps the best example here is the way many liberals, during the first Trump Administration, practically exalted prosecutors, the FBI, and intelligence agencies. In so doing, these liberals not only put aside their prior, appropriate civil libertarian skepticism of law enforcement and intelligence community overreach. They also helped to commit a substantial fraction of liberal politics to the proposition that law enforcement and intelligence agencies should be independent of political oversight–an independence those agencies have used to avoid accountability for abuses on too many occasions.
In addition to the substantive problem, reflexively defending flawed-but-important institutions is often bad politics. Trump and Musk’s attacks on particular institutions are likely to get public support precisely because people see the institutions’ flaws. And beyond any particular institution, it’s clear that a significant explanation for the rise of Trump is that people think the status quo isn’t working. And in many ways it’s not, and it hasn’t been for a long time. Trump’s response will likely make things worse, but a substantial fraction of voters clearly believe things are so bad that we need a chaos agent to come in and make big changes, even if that brings some risk. Reflexively supporting the status quo against Trump and Musk’s assault only digs liberals and Democrats deeper into the wrong side of this political dynamic.
As both of my longtime readers know, I’m no particular fan of Ruy Teixeira. But I think he gets at something important here: “Call it the institutions trap. Trump attacks an institution Democrats are identified with; Democrats feel obliged—pretty much no matter what it is—to defend it tooth and nail. But that simply reinforces Democrats’ brand as the institutional, establishment party, which makes them even more vulnerable to populist attacks and even less capable of defending those institutions.”
“A Portrait of the Present and a Vision of the Future”
So what’s the right answer? As usual, I think Teixeira’s approach is a dead end. He would say we shouldn’t stand up even for essential institutions if they’re not already popular. His approach is consistent with that of Democratic Party poohbahs who have urged against trying to mobilize against Trump and Musk’s assault on USAID. These wise men tell us that people don’t like foreign aid, and Democrats shouldn’t “swing at every pitch.”
I’m not sure they’re even right in their assessment of current-day public opinion. (See Paul Musgrave for an incisive analysis of that question.) But either way, political leadership is not just about finding the mid-point of current-day public opinion. As Gabriel Winant said (in a line I liked so much I quoted it in my earlier post on popularism), “A successful campaign draws on the material of the existing society and assembles it into a portrait of the present and a vision of the future: it does not simply reflect frozen facts of public opinion and common sense but reorganizes them and ultimately produces new forms.”
Following Winant’s insight, we (liberals, progressives, Democrats, etc.) need to devote our energies not just to reflexively defending existing institutions. We need to formulate “a portrait of the present and a vision of the future.” Part of that effort will involve defending institutions under existential attack. But we need to weave that defense into a portrait of why those institutions are so important–they represent the efforts of the people, coming together democratically, to provide for basic provisions and protections that individuals can’t provide on their own–and a vision of how we will make them better, and eliminate their real flaws, in the world we are seeking.
In a piece in the New York Times this week Ro Khanna, at least recognizes that we need to make an affirmative case for the kind of world we want. But his vision is very general and diffuse. And he doesn’t really address how to balance making the longer-term case for a better world with the imperative to defend what needs to be defended in the immediate term. It’s almost as if he wants to skip straight to the visions of the future. But I’m not sure that it’s at all possible to achieve those visions if we can’t successfully defend against the attack on the core of self-governance right now. And too many people are going to be hurt by Trump and Musk’s assaults; it would be unconscionable to give up the immediate-term fight.
Some Thoughts About the Right Approach
So what is the best way to balance the immediate-term imperative to defend important-but-flawed institutions against the longer-term task of making the case for the world we want to see? I wish I knew, but it is something I’m eagerly thinking and reading about, and trying to discuss with folks who are engaged in both parts of the fight. For now, I think there are a couple of implications.
The first relates to how we need to spend our time. We can’t just be fighting the defensive battles; we need to carve out time and space within the broad group of liberals/progressives/Democrats to sketch out the ways we want to change the institutions we’re defending, and to start to build and sell the case for those changes among ourselves and with the public more generally. For myself, I’ve tried very hard to protect a significant amount of time and mental space to engage in the longer-term questions, while I’m also spending a decent chunk of my life these days on the immediate fights. But not everybody needs to do both of these things. We just need to make sure our broader coalition is devoting significant efforts to both the short- and long-term halves of the equation.
The second implication relates to how we talk about the immediate-term fights. Just as with the law enforcement/intelligence community example from the first Trump Administration, it would be a real setback for liberal or progressive causes if we defended institutions in a way that served to entrench their flaws.
For example, it’s imperative to fight Trump and Musk’s attack on scientific expertise and public health. If Trump and Musk get their way here, people will die; they will live less healthy, more miserable lives; and they will be vulnerable to predation by modern-day snake-oil peddlers. But we have to recognize that our scientific and public health institutions harm themselves with their insularity (which can spill over into groupthink) and their too-frequent paternalism (which corroded public trust during the worst of the COVID pandemic, with enduring effects). We have to defend the institutions of science and public health in a way that recognizes the need for and advances the path towards reform. (I discuss some of these issues in this draft paper, but my draft is really an attempt to set the table for a much longer conversation.)
Similarly, the courts are providing an essential means of slowing down, calling attention to, and imposing some checks on the Trump-Musk abuses. Right now, as Congress remains largely supine, and many Trump opponents in the broader public are disoriented and disempowered, lawsuits are providing a key vector of resistance–and an important focal point for political mobilization. But Jamie Raskin put it well in a terrific interview published today: “We are not going to be able to sue our way out of what is a massive political crisis. I’m hoping that we will be able to sue in such a way as to block the most authoritarian takeovers of our institutions and violations of people’s freedoms and rights. But fundamentally, this is a massive political challenge to us.”
We have to remember that the courts remain extremely conservative. And that’s not just because of the large number of Trump appointees; the courts, and particularly the federal courts, have almost always been a conservative institution in United States governance. And it has accordingly been a long-term progressive project to reduce the deference that courts receive in American political life.
We can expect the courts to slow down what Trump and Musk are trying to do, and they will ultimately invalidate some of the most egregious actions Trump and Musk take. But ultimately they will not save us. We will need to go to court to challenge the abuses of the current Administration–as many liberal and progressive organizations have already done in the past three weeks. But we cannot exalt the Supreme Court as the ultimate arbiter of what the Constitution means. The Constitution belongs to all Americans, and the justices of that court have a very different vision of the Constitution than do most liberals and progressives. (One point I tried to emphasize on Dahlia Lithwick’s podcast this week was the distinction between what “the Constitution” means and what a court might decide.)
That will become very complicated as Trump and Musk make noises about defying the courts. We will have to make a public case in terms of the democratic values served by our constitutional system–that democracy depends on the executive being accountable to following decisions made by the legislature–rather than in terms of respecting the authority of people who wear black robes. And we will need to encourage our legislators, and the members of the general public we’re organizing and mobilizing, to see litigation not as a solution that allows them to sit back and wait for the courts to act. Rather, they need to see litigation as one important piece of a broader political campaign–a campaign in which legislators and the general public need to play an active part. (I wrote in this post about the role of law as part of the political response to Trump. Some years ago, I wrote more generally in this article about the role of lawsuits–even unsuccessful ones–in broader campaigns of political mobilization. And I’ve been trying to make these points over the past few weeks as I’ve spoken to litigators, legislators, and local community groups.)
None of this is likely to be easy. Right now, Trump and Musk have seized the initiative. Despite the really inspired efforts of many, the opponents of Trump and Musk remain on the back foot. But we do need to figure out a way both to be aggressive in fighting back against the abuses of the new administration and to sketch out and defend the new, better world we want to see. By the time Trump and Musk are finished with their destruction, we will have to rebuild so many of our institutions, agencies, and programs. We need to do the work now to ensure that we are not just recreating the flaws that, in too many cases, led people to support a chaos agent for president in the first place.