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The Winner? It Might Be the Administrative State

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eye on the news

The Winner? It Might Be the Administrative State

With a strong possibility of divided government, the principal battlegrounds for changing policy could revert to unelected rulemakers and enforcers. November 4, 2020
Politics and law

Ballots in the 2020 election have all been cast, though not all counted. The nation remains deeply divided. Nancy Pelosi’s Democrats will retain control of the U.S. House, and it looks likely, though uncertain, that Mitch McConnell’s Republicans will hold the Senate. We’ll know more on that front as vote tallies get finalized in North Carolina, Michigan, and Georgia—with at least one of the Peachtree State’s two races headed for a runoff election.

These developments will have policy implications. If the political actors perceive that Senator McConnell holds his majority, it could usher in a new federal Covid-relief package. Senate Democrats, with hopes of a better postelection position, have consistently filibustered GOP efforts to get to the bargaining table with House Democrats. Similarly, the parties may come together for compromise criminal-justice reform legislation.

The broader progressive reform agenda looks to be stalled. The Supreme Court will not be “packed” anytime soon with new justices. New states will not likely be added to the Union. The Green New Deal, the “public option” for federal health care, a sweeping federalization and restructuring of U.S. corporate governance—for now, these efforts are likely dead.

With Congress in a stalemate, the principal forces driving much government policy will likely remain the unelected: the executive-branch rulemakers and enforcers, the private litigators, and the “new antifederalists” who try to drive national policy from state and local perches. The high stakes of modern presidential politics owe much to the national legislature’s abdication of authority to these other forces—and to the assumption that executive control can at least indirectly control the rulemaking and enforcement levers.

Control of the executive branch levers may change hands, however. It remains a distinct possibility that Joe Biden will win the Electoral College, and with it the presidency, when all the votes are tabulated and legal challenges resolved. It was premature—and irresponsible—for President Trump to declare victory a few hours after the polls had closed, with more than a handful of states undecided and many Democrat-skewing mail-in votes not yet counted. Yes, electoral shenanigans are probably happening, and both parties should assert their legal rights. But elected leaders have a moral responsibility to buttress an already-frayed but essential public order, not exacerbate divisions and tensions.

My hope—and my expectation—is that notwithstanding the president’s intemperance, our institutions will hold. They’ve held throughout the last four years, amid persistent (and familiar) histrionics from those in the “resistance”; and they have withstood the effort of too many of the 2016 election’s losers to delegitimate its outcome, implausibly tying it to Russian social-media disinformation ad buys, the volume of which was relatively trifling—orders of magnitude less, for example, than the spending dump in Florida this fall by billionaire former New York City mayor Michael Bloomberg.

However the final tally turns out, Trump should view this fall’s election as legitimating 2016, even if he fails to put together enough Electoral College votes to get across the finish line. Voter turnout hit record highs. The anti-Trump “blue wave” hit up against an opposing “red wave,” uncaptured by pollsters, who should face a reckoning after being so off the mark again. Social media giants censored the president himself, as well as negative stories on his opponent published in America’s fourth-largest newspaper. Few folks, myself included, took Donald Trump seriously as a presidential contender when he rode down that escalator in 2015. But for two election cycles, Trump proved pundits and prognosticators substantially wrong. Both political parties should wrestle with the implicit message sent by voters in the election outcomes.

Parsing the public’s “message” won’t be easy, since exit polls are even harder to interpret than usual, owing to the Covid pandemic and the heavy Republican skew among Election Day voters. But certainly no clear electoral mandate exists for the progressive wish list bootstrapped to the Biden campaign agenda. If Joe Biden is sworn in as our 46th president, he may be the first Democrat newly elected to the White House without his party controlling both houses of Congress since 1884, when Grover Cleveland defeated James Blaine.

Thus, the principal battlegrounds for shifting policy will fall back to the realm of the unelected, just as in the final six years of President Obama’s term. A Biden administration could be expected to reassert pressure on schools on issues of sex, sexuality, and gender identity; to revive aggressive environmental rulemaking; and to launch new civil rights investigations of local police departments. (Exit polls suggest that “racial inequality” was the top motivator for Biden voters, while “law and order” was the second-largest motivator for Trump supporters, after the economy.)

A divided Congress would be unlikely to block a prospective Biden team from using its rulemaking and enforcement powers to drive policy outcomes. Somewhat ironically, the best hope for forestalling further incursions on legislative authority by unelected members of the executive branch may rest with the life-tenured, unelected members of the third branch of government, the judiciary.

If the Supreme Court does work to revivify the structural Constitution and nudge our federal government back toward its original operating design, we’ll owe much to Mitch McConnell. The Senate majority leader aggressively blocked a vote to fill Justice Antonin Scalia’s seat in 2016 and proceeded with confirmation votes for Brett Kavanaugh in 2018 and Amy Coney Barrett this fall. McConnell’s judicial-confirmation strategy seems to have been vindicated for the third consecutive election cycle.

Of course, even the Supreme Court reining in the administrative state won’t heal America’s divisions—though it might help on the margins if it lowers the stakes of presidential elections. Americans are fundamentally divided in their visions of government, but that’s nothing new. The genius of our governing framework, which has endured almost a quarter-millennium, is that it allows us to resolve those differences peacefully—creating stability and prosperity for the long-term greater good. Our problems and divisions are real; but we must not forget our good fortune as Americans.

Photo by Stefani Reynolds/Getty Images

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