Our governing institutions are undergoing a dramatic and dangerous transformation. The Trump Administration, aided by its allies in Congress and the Judiciary, is seeking to tear down and remake our basic institutions in a more authoritarian mode. One central task of the current moment is to slow and stop this transformation. Yet as Luke Herrine observed in these pages earlier this spring, another is to begin to envision how to build the kind of egalitarian democratic society we actually aspire to out of the wreckage—and to envision what kind of institutions we need to realize those aspirations instead.
When it comes to the administrative state, any such vision must reckon with two equally challenging realities. First, many of the doctrinal, institutional, and policy predicates for the current crisis were in place long before Trump’s return to power. Second, whenever the current regime comes to an end, the Trumpian approach to governance will have reshaped not only the capacities of the state, but also the social contract between government and the public. The upshot is that when a post-autocratic moment arrives, we will need a crisp vision of regulatory governance that does not rest simply on restoring the status quo ante, but rather seeks to build entirely different regulatory structures—structures more firmly and explicitly rooted in the kind of constructive moral vision that can animate and legitimate a reconstructed government.
In a forthcoming paper, I sketch a way of understanding the administrative regime emerging from this authoritarian and deregulatory turn—and the beginnings of a normative framework for imagining what kind of administrative state we ought to pursue in its wake. At the heart of this critique and constructive vision is the idea of domination. The transformations currently underway are best understood as form of reactionary administration, whose purpose is primarily to reassert, defend, and entrench hierarchies of economic, social, and political domination. In contrast to this vision, progressives ought to aspire to a regulatory state whose purpose is anti-domination—the dismantling of these very relations of domination and subordination. This vision should, in turn, orient us to a specific and constructive institutional project of building democratic and democratizing capacities.
In this post, I sketch this normative vision, outline what it might entail in terms of concrete institutional designs, and briefly explore the implications of this approach for the broader debate over the purposes of legal scholarship and advocacy in this moment.
Reactionary Administration
Before imagining what comes next, it is important to first diagnose the nature of how governance is being deployed and transformed in this moment. Far from the conventional clash between progressive ‘big government’ and conservative deregulation, the current administration is simultaneously dismantling some state capacities—such as the capacity to regulate private economic power and to secure basic civil liberties and the ‘floor’ of the safety net—while also aggressively weaponizing the federal government’s powers to attack a variety of disfavored groups and oppositional power centers, from immigrants to LGBTQ communities to higher education and law firms.
The deregulatory and deconstructionist prong of this project is perhaps the most familiar. It involves policy shifts, such as having the Consumer Financial Protection Bureau withdraw its proposed rule restricting data brokers’ ability to vacuum up and sell reams of private data on individuals. It also involves what is known as structural deregulation, such as the attempted (and arguably unlawful) mass firings of civil servants to cripple agencies—including those charged with regulating the safety of our food, our workplaces, and our consumer products. For the first time in modern American history, this deconstructionist project now even extends far upstream, cutting off the fountain of public resourcing for basic research, information gathering, and service provision that provides the foundations for American innovation.
The second dimension of the current reformation of administrative governance focuses not on deconstruction, but on weaponization. Here, the project is to supercharge existing capacities of the state specifically to suppress, oppress, and dominate key constituencies. As economic regulatory agencies are being gutted and even shuttered entirely, ICE has been unleashed and hyper-resourced to drive an increasingly aggressive campaign of stochastic terror targeting immigrant communities—a campaign that involves everything from the renditioning of lawful residents in broad daylight to siccing ICE agents on places of worship, schools, emergency rooms, court hearings, and community events. Meanwhile, federal funding and grant programs have been weaponized to force private organizations, from higher education to law firms to state and local governments, into submission. Here too, the strategy involves a combination of individual policy changes and structural shifts in administrative capacity. For example, the administration has centralized direct Presidential control over Treasury’s payments infrastructure, consolidated previously private and siloed databases (including over Americans’ highly personal financial and Social Security information), and made moves to politicize the basic data-collection and scientific functions of the state.
The combination of deregulatory and weaponizing strategies are complemented by a third significant pillar of governance in the emerging regime: the increasing centralization and personalization of control over the bureaucracy in the Executive Office of the President and in the singular President himself. This has been effectuated by the (arguably unlawful) firings of agency heads and civil servants, as well as through the adoption of personal and political loyalty tests in recent hiring reforms.
These three objectives—deconstruction, weaponization, and personalization—reinforce one another. And taken together, they paint a picture of governance that is best understood not as merely deregulatory, nor as a generic case of “democratic backsliding.” Instead, a better way to understand the combination of these projects is as the formation of a specifically reactionary vision of administration. By “reactionary,” I mean specifically the reaction against attempts at equalizing social and economic relations—whether in terms of race, gender, class, or other dimension of inequality. Thus, the capacities being dismantled are those most essential to remedying already-existing economic and social inequities: by protecting workers, reining in economic power, or defending basic civil rights against various forms of systemic or individualized discrimination. By the same token, the state capacities being magnified are those that are most adept at enforcing, sometimes violently, social hierarchy—whether by criminalizing immigrants or criminalizing poverty. Autocracy, which emerges here as a broader mission of pro-actively attacking attempts by prior generations to equalize economic and social relations, is necessary because these policies are fundamentally unpopular: aimed at advancing the interests of a narrow band of people at the expense of the broad majority.
While I have focused here on reactionary administration as a matter of executive action, it’s worth noting that it has also been embraced in the Republican legislative agenda as well. The pending budget bill, for instance, will triple or quadruple the resourcing for coercive immigration apparatus, while eviscerating programs aimed at providing economic security. Nor is this vision a pure product of Trump and the MAGA movement; its foundational elements have been put in place through doctrinal and policy innovations of years and even decades past. The Roberts Court has underwritten this assertion of personalistic presidentialist control through its embrace and development of unitary executive theory, blessed the laundering of animus through immigration enforcement, and neutered those economic regulatory capacities most hostile to concentrations of economic power and inequality. Liberals, meanwhile, have enabled the worst of these excesses by turning a blind eye or even embracing long-standing practices of “administrative subordination” and the coercive administrative tools in immigration and elsewhere.
Domination and Freedom
If this account of reactionary administration is correct, then a contrasting vision for progressive administration needs its own moral “north star,” one that orients governing institutions around the larger normative project of creating a more equal, free, and democratic society. In my recent paper and other work, I have turned to concepts of domination and freedom as a way to ground this kind of inquiry. A framework focused on domination and anti-domination is useful today because it highlights the threats to freedom from both private and state actors—and from both individual agents as well as larger systems. This in turn helps point us towards the kinds of state institutions to protect against both private and state forms of domination.
Domination at its core is about the problem of concentrated, unaccountable power. Sometimes, this power takes the form of a readily identifiable dominator. In private and economic relations, think of the power disparity between workers and bosses. Similarly, the anti-monopoly critique of dominant actors, platforms, or financiers foregrounds a similar kind of power disparity. Crucially, the focus on power means that there may be a problem of domination even if the dominant actor happens to act benevolently. A worker may happen to have a supportive workplace, but if that support is only the result of the boss’s benevolence—rather than being backed by actual rights or an actual share of power on the part of the worker—then the worker is not really free. Similarly, where individuals and firms preemptively avoid criticizing political leadership for fear of retaliation, then political freedom has already been lost—even if some individuals might avoid active political persecution through silence or ingratiation. The key threat to freedom is the capacity to arbitrarily interfere in another’s choices and opportunities, whether it is exercised or not. This same notion of arbitrary power—even if it is exercised benevolently—is at the heart of long-standing traditions of republicanism hostile to the concentration of political power in the monarch, the tyrant, and elite interests with outsized political influence.
Sometimes, domination arises not from a readily-identifiable dominating agent—the tyrant or the monopolist or the boss—but from the aggregation of a host of policies, choices, and actions that accumulate into a larger social system. This structural injustice is still a form of domination, as it represents a set of human-created, albeit seemingly natural, constraints on freedom. Thus, “market forces,” understood as the cumulative products of individual choices and a myriad of background laws and policies all made by humans, produce systemic constraints on individual and collective freedom. Consider, for example, how the combination of zoning, housing, and infrastructure policies in conjunction with practices of commodified labor, limited safety net programs, and pervasive racialized and gendered discrimination all combine to make it exceedingly difficult for individuals to find affordable housing, high wages, and long-term economic mobility.
If domination diagnoses the different threats to freedom—in social, economic, and political dimensions, and arising from individual as well as systemic sources—then anti-domination, the containing and dismantling of these power disparities, offers a powerful way to conceptualize how we construct a truly egalitarian, democratic freedom to thrive. Such democratic freedom requires institutions, norms, and structural changes to political economy so as to preclude these concentrations of arbitrary power. Hence the importance of political structures that prevent the concentration of political power in the autocrat—constitutional, administrative, electoral and other such institutions. And hence the importance of economic structures that similarly prevent the concentration of economic power: policies to prevent monopoly power, or dominating workplaces, or newer forms of control exerted by high finance and technological platforms.
This project of preventing domination and thereby enabling democratic freedom supplies an overarching moral purpose for governing institutions. In the context of the administrative state, this framework helps highlight the kinds of administrative powers and capacities we ought to (re)create, as well as the capacities we ought to actively dismantle.
The first goal of an anti-domination administrative regime is protection in social and economic life. Here, administrative capacities need to enable the enforcement of structural limits on various kinds of private domination. Think of regulations to curtail economic power in the marketplace through anti-monopoly policies and consumer protections; or workplace safety standards and minimum requirements for wages and other protections. Basic protections of civil liberties and against various forms of discrimination can be understood similarly. Crucially, in achieving this goal, any approach to rebuilding our regulatory institutions must account for the modern ways in which power circulates. For example, it should be increasingly clear that control over data is a central way in which power is exercised today—and thus policies that effectively curtail domination will have to be designed to operate on and through the control over data and information.
A second goal for a new administrative regime, viewed from the standpoint of anti-domination, is the effective and affirmative provision of the social and economic necessities and capacities needed to enable individual and collective well-being and freedom. This is why, for example, we need a well-functioning system for providing guarantees like Social Security, healthcare, and housing, and why bureaucratic systems that frustrate this goal need to be replaced with an institutional structure that provides these supports seamlessly, equitably, and at scale. Thus, a reconstructed administrative state must have an approach to safety net programs that does away with racialized, gendered, and exclusionary administrative burdens. Such a regime must also possess the capacity to deliver broad, fast, scaled public investment in foundational industries and include public options in areas like healthcare or housing.
A third goal in an anti-domination frame for the administrative state is the prevention of state forms of domination. While claims of administrative autocracy have often been leveled against economic regulatory efforts that bear none of the hallmarks of unaccountable, arbitrary policymaking, the realities of modern-day administrative autocracy arise primarily from the coercive and carceral state apparatus: immigration enforcement, the criminalization of poverty in coercive removal of welfare benefits, and other mechanisms of administrative subordination that can suffuse administrative discretion across agencies. To construct an anti-autocratic administrative apparatus, we need to pursue democratic, participatory structures for shaping everything from industrial policy to enforcement and rulemaking, while also encouraging civic association and organization more broadly.
Reconstructing Democratic Capacity
If these are the overarching priorities of an anti-domination administrative state, what does this mean in terms of concrete institutional designs? Inevitably, there will be tensions and tradeoffs that have to be worked out in specific contexts. What is the right balance, for example, between participation, representation, and expertise in a particular bureaucratic structure? How might we balance between internal checks and balances and procedures on the one hand, and more empowered and capacious state capacity capable of moving fast and at scale on the other? Often, we treat these choices as all-or-nothing. But in a moment of reconstruction, if and when it comes, it will be important for scholars, policymakers, and advocates to engage in the tension.
To help us navigate these trade-offs, we should turn to both historical and recent examples where a well-designed institutional structure, oriented towards a clear north-star of anti-domination, can be effective in moving us towards a more equal political economy. In his recent book Democracy in Power, for example, Sandeep Vaheesan offers an account of the New Deal era project of electrification that combined a push to restrain concentrated corporate power, an affirmative project of state investment and public provision, and regulatory and institutional structures that were meaningfully democratic and democratizing. The history of racial justice advocacy offers similarly important examples. In healthcare, for instance, civil rights advocates and doctors pressed regulators for a combination of enforcement powers under Title VI and affirmative public funding for hospitals, which together played an important role in healthcare desegregation in the 1960s. We might also look to the recent efforts of the CFPB and the FTC to curtail modern forms of extractive finance, monopoly power, and private control over data—and to do so in ways that leaned heavily on deep engagement with small businesses, consumers, grassroots communities across the country to inform regulatory priorities, design, and enforcement.
Drawing on these and other examples, I suggest that scholars and policymakers should approach the question of institutional design at four levels.
First, we should be thinking in terms of wholesale creation of new agency authorities and structures. The CFPB was created after the 2008 financial crisis, and the FTC was chartered in response to the excesses of the First Gilded Age. Title VI came out of the Second Reconstruction’s vision of truly inclusive civil rights. What new institutions must we create in the next moment of openness? By the same token, what institutions must be dismantled and depowered? In a world where ICE is undertaking increasingly brazen attacks on communities across the country, there are real questions to be answered about how to structurally limit such excess concentration of arbitrary power and domination.
Second, we should be thinking about how to redesign the inner workings of agencies themselves. How does the combination of law, staffing, culture, discourse, and norms shape what agencies do and don’t do? What are the kinds of data, information, expertise, participation, or capture that come into agencies to shape (or skew) their decision-making? What new structures are needed to ensure that these inner workings of the agencies of the future are in fact tethered to their missions and aligned with anti-domination principles?
Third, we should engage the task of redesign with an overarching attention to questions of power. How might agencies be designed to amplify the power of impacted communities on the ground to have their voices heard and their needs met? How might these designs protect against the outsized influence and power of dominating corporations, or of groups seeking to reassert reactionary forms of subordination? And how might these institutional structures be made more durable—by embedding, for example, points of leverage for impacted communities within agency policymaking, or by creating systems like the VRA’s preclearance regime or like the universal benefits of social security that are sticky and hard to disrupt?
Finally, we will have to engage the task of agency (re)design within the context of broader questions about constitutional and democratic structures and institutions. We are in the midst of an urgent fight over the concentration of excess power in the Executive branch more broadly, and in the power of the President specifically. What does a future administrative state look like that can deliver on the goals above, but that shifts more power to agencies (away from the White House), and envisions a richer interconnection between administration and Congress? How might administration be more geographically dispersed and rooted in place? And what might be the relationship between administrative institutions and the deeper task of building inclusive mass-member civic associations that transcend elections and strengthen democracy?
Design and Its Limits
These are big questions to tackle. But they align, I think, with the calls on this blog and elsewhere for how we might engage in this kind of institutional design thinking and scholarship in a time of authoritarian crisis. Elizabeth Popp Berman suggests that for some, the route might be to “zoom out” and look at more foundational structural questions about power, political economy, and the kinds of transformations we ought to imagine. Beau Baumann has rightly warned that progressives ought not to resort to the familiar modes of policy analysis that do not adequately grapple with the deeper realities of authoritarian ascendance and the deeper crisis of faith in institutions. And LPE scholars have long sought to toggle between a more clear-eyed commitment to genuine transformation through non-reformist reforms, and a level of institutional- and policy-specificity that lends concreteness to those aspirations.
All that said, there is, of course, a limit to what can be accomplished through institutional design. Reconstructing the administrative state has to be understood as a project that is complementary to, and in some sense, downstream of, a more foundational reckoning with authoritarian power and democratic institutional collapse. In a world where constitutional protections against autocratic overreach—such as the Emoluments Clause, the Insurrection Clause, or impeachment—have ceased to function, no amount of administrative procedure or design will be sufficient to arrest the slide into autocracy. Yet to recognize this is not to discount the importance of the task. Administrative reconstruction cannot do the work of structural democracy reform—but to succeed, any pro-democracy mass movement will need a normatively-grounded and institutionally-rich vision of how state capacities ought to be structured to best advance freedom and protect against domination.
