Facing the challenges to good government posed by the Trump administration and how to rebuild for the future
Strom: I would like to move to the present moment and talk about the current Trump administration. Can you talk us through some of the ways that the federal government is being transformed in this current political environment, and why those changes matter for people who are interested in addressing inequality and driving shared prosperity?
Rahman: Sure. I teach first- and upper-level law students both constitutional law and administrative law. And we spend a lot of time in a standard law school curriculum. We spend a lot of time talking about how President Franklin D. Roosevelt remade the constitutional order to create a more inclusive society and safety net. I think, in a lot of ways, we are living through a similarly transformative period but running in the exact opposite direction.
This administration is increasingly offering what might be called a vision of reactionary administration. Reactionary in the sense that so much of the policy agenda is directed explicitly against the very idea that we should have an inclusive economy or that we should have an inclusive society. The explicit attacks on equity and inclusion. The almost-gleeful desire to gut social programs. The decisions not to enforce worker protections or restrictions on monopolies and corporate power. This real vision of society is normatively a bad one.
The other thing that is key is that this vision is being baked into a very different structure of government itself. And that is what makes this especially dangerous because that has the possibility of lasting a long time if we do not build a very different governing structure after this moment passes. And right now, there are three different transformations happening to our governing institutions at the same time.
One is an explicit dismantling agenda. The Trump administration is very aggressively undoing many of the administrative agencies that are most-needed to protect Americans against economic exploitation or social discrimination—alongside, in some cases, the mass firing of those civil servants and the deleting of data that agencies have collected, such as emissions from coal plants. In a lot of cases, they are unwinding the legal authorities and the regulatory tools that agencies have. This wholesale dismantling agenda is familiar to past debates between left and right but way more aggressive and potentially transformative today.
The second is a weaponizing agenda. So, here, the Trump administration is taking already-existing administrative power and supercharging it in ways that are really dangerous. Consider all the pressure that the U.S. Department of Education is bringing to bear against universities and colleges to try to get them to follow the administration’s line on equity and inclusion. That is a doubling down on regulatory oversight but in a way that is especially problematic.
And the third is the personalization of administrative power. A kind of classic requirement of administrative law is that the government is not just the whims of the singular president. There is process, there are stakeholders to consult, there are steps to go through. There is evidence that agencies have to collect and then present. And they have to be able to defend the policies on their own terms, not just because the president said so.
So much of this administration’s work is actually trying to centralize more and more control of individual policymaking or enforcement decisions in the whims of the president. And, at a certain point, that ceases to be democratic governance and administration, and it really becomes monarchy. Which is what we are not supposed to have. If there is one thing the Constitution stands for, it is the idea that we do not have a king and we do not live in a monarchy. I think these transformations are especially troubling when you layer them all together.
Strom: If we try to think about what comes next after this, why would it not be enough to return to the status quo that existed before all these transformations of government came about?
Rahman: This is a really important question for progressives to grapple with, and it goes to your question about learnings. Even before 2025—or, let’s say, even before 2016—the administrative machinery that we had was still not actually what was needed to have the kind of inclusive, dynamic economy and society that we want. So much of it was dependent on, frankly, out-of-date statutes, administrative agencies that were super underresourced for a long time, working on legacy, old-school systems, and with a lot of layers of process and procedure and steps to jump through. This is not the way progressives would draw it up if we were to build it from scratch today.
So, I do think it is not enough to say, “Well, everything was great in the before times,” whenever that was, whatever date you choose. It is really important instead for us to ask, as a matter of first principle, what do we want our society to look like? We want Americans to be protected from precarity, from insecurity, from exploitation. We want a robust provision of shared infrastructure and social programs, and the kinds of things people need to thrive. We want an inclusive, equitable society.
Only then can we figure out what we actually need to make that vision real. And that is what should inform progressives’ vision of what kind of administrative state should come next. It is not what the current administration is building, that’s for sure. But however good the policies were of previous administrations, it is also not the machinery that those previous administrations, those of us who served, had at our fingertips.
So, we need to solve both of those problems, and I think that is a challenge, But it is part of what this moment of crisis maybe opens up for policymakers and scholars to think through.
Strom: That is a big endeavor. Have there been examples in the past where people have done this kind of thing? Or what do you think people should look to for guidance when they are working on those kinds of efforts?
Rahman: One thing I am finding in my recent work, looking at the histories of policymakers and advocates before those big foundational moments, is what it was like before the New Deal became the New Deal. And what it was like before the Civil Rights Act became the Civil Rights Act. What is so interesting to me is that you see this really rich ferment among advocates, activists, scholars, state and local policymakers, federal policymakers—all of them trying to figure that out in much the same way that we are having to figure it out now.
I do think there are some common lessons. One is that no matter where we land on what the substantive policy should look like on the economy, we are going to need bureaucratic institutions to enforce, implement, and execute. And that is going to require cadres of committed, independent civil servants to make that work. So, we are going to need to build or rebuild our civil service machinery, for sure.
We are also going to need to create new authorities that give the next generation of agencies the actual powers they need to address modern-day forms of discrimination or exploitation. Some of the old authorities are still really good. The Federal Trade Commission Act, for example, was written very broadly in the early 20th century, because those folks were very well-aware of how dangerous monopoly power was and how many different forms it could take. So, in some cases, such as the FTC Act, we have the language right there and we just have to act on it. But in a lot of cases, we are going to need to update the authorities.
And a third thing is that we are going to need a much bigger set of institutional creativity on making these agencies work well. One example of how this might work is Title VI of the Civil Rights Act, which essentially says that recipients of federal funding cannot discriminate in violation of the policies of the Civil Rights Act. That obviously is a very big tool to help advance a vision of an inclusive society, but it was not really clear what that would look like when the new law was enacted. And there is all this great history about the first wave of bureaucrats and Civil Rights Movement activists who really pressured, for example, the U.S. Department of Health, Education and Welfare [now the Department of Health and Human Services] to look at giving all this federal funding to hospitals that were still segregated. That seemed to violate Title VI of the Civil Right Act.
So, with some pressure and some creativity, the then-secretary of Health, Education and Welfare created an Office of Civil Rights to start to actually go check on hospitals receiving federal funding to see whether they actually were desegregating their wards. And that is how the desegregation of our hospitals happened. I love this story because it is a good example of a statute and an authority. But it still took a lot more pressure from social movements and a lot more creativity from bureaucrats, from civil servants and political appointees, to actually create a situation that helped drive the desegregation of our health system.
Now, our health system today is still super segregated in other ways, but Title VI is a good lesson, I think, of the kind of policy and activism and creativity that is still going to be needed in the future.
