As the Trump Administration continues its assault on the organs of American government, the Left has begun imagining what post-Trump reconstruction will look like. A few months ago, I authored a Substack post, titled The Aftermath, which challenged progressive thinkers and academics to grapple with the harsh realities it will entail. In essence, I argued that Trump’s assaults on state capacity have effectively dismantled the liberal-political framework that shaped much of the twentieth century. This is an existential challenge for LPE public law thinkers who premise their work on a progressive vision of institution building and an aggressive assertion of state power. LPE scholars, like centrist liberals, face a post-Trump world in which the state has been both thoroughly delegitimized and incapacitated, but have so far failed to grasp the extent of that challenge.
Building on my previous internal critiques, I argue that the challenge of post-Trump reconstruction will require LPE scholars to reexamine their preoccupation with administration that has become divorced from a constitutional politics rooted in democratic self-rule. Trump’s successful politics depend on the death of knowledge-based authority and a “deep state” conspiracy that accuses the administrative state of lacking democratic legitimacy. To reconstruct state authority, we need a vision that answers these charges. Administration needs to be made democratic, accountable, and representative of regulated communities. The goal, in sum, is the reconstruction of the political basis for administrative authority. This post suggests a roadmap to align LPE’s reconstruction vision with a project of relegitimation, built on truly representative institutional design that the American people can believe in.
A Preview of the Aftermath
The progressive political imagination has long revolved around a mix of policy enactment and institution-building. Consider the Obama Administration as a prime example: it enacted the Affordable Care Act (ACA), which, after initial hurdles, gained broad popularity. At the same time, Obama-era Democrats recognized the value of institution-building, using their mandate to establish the Consumer Financial Protection Bureau (CFPB), an independent agency tasked with consumer protection and financial regulation.
LPE scholarship operates within this framework but pushes it to its limits, highlighting the multiplier effects of institution-building, which can foster new political economies and, in turn, reshape politics itself. In this sense, LPE aligns more closely with the “progressive” tradition, focusing on generating novel political dynamics rather than treating the politics of any given moment as fixed.
Yet, both LPE and the broader progressive imagination presuppose what I call “administrative depth”—a foundational element of American administrative law since its emergence at the turn of the twentieth century. Think of the Federal Reserve System, a complex set of interlocking institutions dominated by expert economists who are shielded from political interference through overlapping tools of institutional design. The administrative law field’s pioneers prioritized subordinating raw political will to values like the rule of law and expertise. The logic is straightforward: a modern state cannot function if its bureaucracy operates like John Gotti’s crime family. When the bureaucracy merely channels the unchecked whims of the leader at the top, it inevitably erodes the rule of law.
Today’s progressives inherited administrative depth from the Progressive and New Deal eras, taking it for granted. One could pursue policy reforms assuming a stable bureaucracy and consistent rules for implementation. This is reflected in Elizabeth Popp Berman’s work on the LPE blog, which emphasized that policy “is only a useful lever if we can assume a functioning democracy with relatively stable legal and political institutions.” Similarly, institution-building seemed viable because administrative law provided legal safeguards, procedures, and norms to shield new entities from existential threats.
The second Trump administration has shattered these assumptions. It demonstrated that any future Republican administration could sabotage popular policies and dismantle institutions unilaterally. Trump’s team targeted so-called “independent” agencies, assaulted the civil service, claimed unilateral authority to appoint acting officials, impounded appropriated funds, and even dissolved agencies like USAID. Law is not a meaningful roadblock on these shenanigans so long as legal sanction depends on a judiciary deeply enthralled with the unitary executive theory.
If administrative law’s core mission is to curb unbridled political will, Trump has imperiled the field’s very existence. His vision would kill administrative law and replace it with administrative domination managed by a personalistic presidency. This has upended progressive politics: Why enact something like the ACA if the next GOP administration can eviscerate it? Why invest in building an agency like the CFPB if it risks destruction before it can take root?
The devastating blows these moves have dealt to liberal politics are best exemplified by our federal bureaucracies. The bureaucratic office I called home, the Department of Justice’s Office of Immigration Litigation, was a typical collection of lawyers with tremendous expertise in the nuances of immigration law. Because of the material conditions LPE scholars have long analyzed, many of these bureaucrats existed in a state of precariousness. While new hires were loaded with a catastrophic level of debt, they could persist for a few years with the expectation of stable employment and protections from political interference. That office has now been decimated by Trump. The pipeline for new talent has been deconstructed. Trump has devastated the basis for stable administration in this country by revealing the feeble laws and norms holding the system together. Why would a young person even want to join a bureaucracy if their lives could be upended anytime a Republican sat in the White House? Altogether, administrative law as we know it is no more.
Rebuilding State Capacity Won’t Work
This foundational blow to state capacity and to administrative depth has not been sufficiently reckoned with by the LPE community. One of my key LPE interlocutors on MAGA’s implications is Luke Herrine, whose counterarguments I reconstruct here as faithfully as possible. Luke contends that I’m exaggerating the issue: “An administration truly committed to building expert-led agencies (responsive to the public) can cut through a lot of bullshit. People want what works.” He also advocates for a “transformative” agenda that prevents Republicans from regaining political power in the near term, akin to the New Deal’s dominance in the realm of public opinion.
I appreciate Luke’s perspective, but I fundamentally disagree. First, the state is notoriously “submerged“—Americans rarely perceive “what works” in real time. The Biden Administration implemented genuinely transformative policies, yet there’s scant evidence that the public grasped their impact. The Administration’s temporary expansion of the Child Tax Credit in 2021 substantially ameliorated poverty and food hardship, but was nonetheless allowed to lapse within months after the expansion failed to command a sufficient political constituency. Good policy does not necessarily bring about favorable public opinion or political support for progressive initiatives. We can’t rely on effective governance to legitimize itself.
Second, pinning our hopes on New Deal-style political hegemony is unrealistic. Luke and I concur on the need for a broader constitutional politics to challenge judicial supremacy, but it’s imprudent to base strategy on rare, generational dominance. No one should bet on the Democratic Party achieving hegemony any time soon.
In sum, we must think more expansively beyond state capacity-building. Relying on actions by a submerged state and once-in-a-generation political capital mistakenly depends on administrative legitimacy that no longer exists. In fact, the very lack of this legitimacy in the eyes of the public is the thing the Trump administration is preying upon to carry out its deconstructive agenda. To rebuild in the aftermath, we need to confront the looming root problem—the legitimacy of the federal government—head-on.
Our Ongoing Crisis of Authority
This crisis of state legitimacy isn’t new. As Paul Sabin details in Public Citizens, the New Deal order relied on a model of knowledge-based authority that has since collapsed. New Dealers shifted power from traditional sources to ostensibly apolitical experts who could wield state authority in insulated domains. That model is long defunct. Sabin chronicles its erosion through left-wing critiques in the 1960s and 1970s, which portrayed agencies as “captured.” No viable replacement has emerged; when conservatives ascended in the 1980s through neoliberal and Reaganite challenges to the New Deal order, they were pushing against an open door. No Democratic administration has been able to put Humpty Dumpty back together again by reimagining or reestablishing the legitimacy of state authority.
In the resulting vacuum, Donald Trump’s politics have seized on the twin phantoms of our beleaguered republic—the unitary executive theory and the “deep state conspiracy.” The unitary executive posits an Article II-based president as the sole national tribune, clashing with administrative law’s emphasis on constraining political will. The “deep state” narrative inverts progressive ideals, questioning the administrative state’s democratic legitimacy, accountability, and representativeness.
Opponents of MAGA have faltered in response, chanting “expertise” like a spell that’s lost its magic. Knowledge-based authority was a historically contingent mode of governing authority that no longer resonates. This is evident in figures like RFK Jr., whose anti-vaccine stance rejects science outright. But he’s symptomatic of a broader post-COVID shift, where millions challenged expert guidance. The pandemic exposed the fiction of the New Deal’s politics-expertise divide: applying science to enact COVID restrictions involved political judgments in uncertain conditions. People rightly doubt that expertise can be fully depoliticized.
That realization puts us in the crosshairs of the political dilemma of the moment. We have not been able to explain to the petit bourgeois of the MAGA movement, the guy who owns a Toyota dealership in central Arkansas, why he should be ruled over by a group of experts that do not share his mores. It is no wonder why this guy, and many of his working-class employees, have gravitated to a constitutional politics that, if nothing else, promises a democratically accountable tribune-like presidency.
Imagining a Representative Administrative State
LPE is uniquely positioned in the legal academy to develop short- and long-term solutions to this challenge that are anchored in democracy, accountability, and representation. Our solutions must embrace administrative depth while abandoning our preoccupations with elite technocracy, at all costs, instead adapting to an era of populism and crises of authority. The goal is to reconstruct the political basis for administrative authority by reconfiguring agencies’ relationships with the public through political organizing.
To wrest the hearts and minds of Americans away from the unitary executive and towards a truly democratic foundation for the administrative state, reconstruction must be centered on representation. By representation, I mean administration that’s seen as vindicating concrete communal interests instead of abstract policies.
W.E.B. Du Bois’s treatment of the Freedman’s Bureau offers a historical example. He argued that the Freedmen’s Bureau won a place in the hearts of Black Americans by being the institution most associated with the vindication of Black rights. The Bureau represented them and their interests in a way that no other state actors did. That’s the ideal. Notice the difference between an institution that represents a marginalized community, and a contemporary agency that represents an abstraction, say, the environment (no disrespect intended towards the EPA).
Contemporary examples tend to be very bleak because the Left has not embraced a representational mode of administrative legitimacy. When I lived at the border in Laredo, Texas, I witnessed this strategy being deployed by the Right via the construction of the deportation state and a militarized border. The deportation state is a personnel-intensive project. Everyone you meet has an uncle or a brother working for ICE. The benefits are better than almost any other job available and comes with an internal narrative that connects employees with an important national project and implicitly gives Laredoans a voice in its execution. As a result, DHS and ICE – controversial agencies to say the least – have become the foundations of life in Laredo, subsuming the interests of the community. When pressed on the results of the deportation state, many people will rest on the fact that ICE now represents the economic vitality of the region. When Democrats debated abolishing ICE, it was apparent to people in South Texas that a pillar of communal life in swing districts across the Southwest was up for grabs.
Both of these examples demonstrate, for better or worse, that administrators can win a different kind of legitimacy founded in their ability to represent different segments of the American people. A conceptual shift in favor of representation ought to be combined with concrete moves designed to overcome the challenges of the Trump Era.
A first move, focused on the political foundations for administrative authority, is to make assaults on state capacity political suicide. Building on the work of Nick Bednar, I propose we relocate sensitive bureaucracies out of D.C. and into swing districts in battleground states. This leverages MAGA tactics and LPE insights. In 2019, Trump relocated the Bureau of Land Management from D.C. to Grand Junction, Colorado, decimating staff through attrition. Reversing this exercise of raw power, imagine siting a new and personnel-intensive agency in a key North Carolina suburb. LPE’s focus on institutions’ interplay with political economies suggests this could render capacity destruction unpalatable—once a community depends on civil servants, GOP attacks invite backlash. Previously supine lawmakers and business leaders might resist MAGA moves that would decimate the GOP’s political standing in strategically important communities. Tradeoffs exist, like potential talent loss from relocations, but MAGA’s devastation offers a relatively clean slate for rebuilding.
Second, we must pierce the submerged state by empowering agencies to communicate directly and at scale with regulated communities. Drawing on Gabriel Scheffler and Daniel Walters, we know agencies are hamstrung by anti-propaganda laws, despite a few inherited icons like Smokey Bear. Post-Trump reconstruction demands robust public relations to counter “deep state” myths. Agencies should promote their services and assert genuine representational legitimacy: “We’re not D.C. outsiders; we’re your neighbors, faithfully serving your interests.”
And I am not suggesting a ploy. By actually building authentic ties to regulated communities, the Left can remake administration. This would require recruiting administrators out from the communities they regulate. It would require more dialogue between those communities and federal administrators. The goal, again, is to be seen as the vindicators of different communities’ interests, not far off apparatchiks.
This project is not a quick fix. I imagine an intergenerational project not unlike the construction of the modern state between the end of the Civil War and the end of the New Deal. This is not something you can pull off in a two-year rush for political hegemony.
A Third Congressional Reconstruction
One desirable feature of this agenda for reconstructing the administrative state is that it is compatible with – and in fact relies on – reviving democratic self-rule. To establish the legitimacy of the reconstruction agenda, we don’t just need to reconfigure the agencies’ top-down relationship to the public, but also the public’s bottom-up relationship to agencies. As I argued above, the second Trump Administration illustrates the pitfalls of any strategy that further aggrandizes the presidency as that democratic vehicle, and the courts, obviously, will not save us.
Instead, the institution in the United States with reservoirs of legitimacy to lend is Congress. David Mayhew argues that although Americans hate any given Congress, they routinely wish for more authority to be devolved onto their national legislature. As such, LPE’s public law wing must fully divorce itself from a presidentialist mode of governing – any reconstruction moment must hinge on Article I and aggrandizing Congress.
Congress, as our best existing means for collecting a passing vision of the collective will, is uniquely situated as an overseer of the reconstruction effort. By putting Congress at the center, the people would have a ready avenue to exert external pressure and impose accountability on the administrative state as it is being actively reconstituted.
To subordinate the administrative state to the will of Congress effectively, several reforms will be required. Many, like axing the filibuster, are no-brainers. But more foundationally, this vision of legislative dominance will require the subordination of the Supreme Court. While a difficult task, this fight is inevitable for any progressive vision of the future to seem plausible.
It will require a new rule of law centered not on juristocracy, but on our other generator of law: American legislatures. This rule-of-law narrative would help legitimize a reconstruction effort by telling the American people a story of how the new world comports with our longstanding legal-political traditions. The era when legislatures were the dominant force in American politics is far off, but nostalgia for legislative rule plays an important role in American law and politics. A reconstruction narrative that capitalized on that nostalgia may be just as potent.
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This post elucidates an ambitious vision of the future to meet the LPE call for all of us to begin the long process of “envision[ing] how to build the kind of egalitarian democratic society we actually aspire to out of the wreckage.” The present woes amount to a crisis in governing authority that is only rivaled by the calamitous collapse of American society occasioned by the post-Civil War environment. Then, the resulting search for order required an inter-generational fumbling in the dark. These proposals, too, will have to be fleshed out through concrete institutional design measures resulting from much trial and error. But, by imagining a new political basis for administration, LPE can offer an important claim on the future. Regardless, that future will require a new playbook, one that leaves our longstanding love affair with technocracy in the past.
