It’s Time for Outgoing Democrats to Play Hardball
Much can still be done
between now and Inauguration Day to put limits on the excesses of the incoming
Trump administration.
Nov 15, 2024
IN THIS CRUCIAL PERIOD between the
election and the inauguration, opponents of the president-elect need to use
every feasible lever of power to defeat Trump’s movement, lest the country
fail.
In this, they would be correcting a
past mistake. The original response to Donald Trump’s rise was based on a strategic error. His critics and opponents
thought he was an aberration, not a phenomenon—a recipe for quietism.
In the context of culture, we had
Michelle Obama’s initial response: “When they go low, we go high.” The comforting
conceit was that if Trump’s opponents continued to hold the moral high ground,
Americans would eventually tire of the man’s shenanigans and return to their
better natures. If you get down in the mud with a pig, the saying goes, you
only get dirty.
In the political context, this
misconception contributed to the Democrats’ recent defeat. Biden and
congressional Democrats saw Trump as an exception, so when they took power in
2020, they returned to traditional, normal leadership activities. They performed
admirably. Like a well-drilled baseball team turning a double play, the
Democratic Congress, despite its narrow majority, passed valuable legislation
aligned with typical Democratic priorities, like the Inflation Reduction Act.
The problem is that Trump was playing
dirty. The Democrats may have turned a double play, but the runner had gone to
second anyway and was punching the second baseman in the face. Had Democrats
recognized the transformational meaning of Trump’s movement, then instead of
prioritizing “normal” legislative activities, they would have put their focus
on reforming electoral rules to prevent Trumpism from taking root. Drastic
options would have been on the table—things like adding two states to gain four
Democratic senators or beginning the effort to abolish the Electoral College
(not that the latter would have helped them in 2024). They did none of those
things.
Likewise, in the context of law and
policy, the Democrats’ idea was to continue to adhere to the norms of conduct
that undergird formal legality. The very first piece I wrote after the 2016
election was titled “Defending Norms by Defending Norms,” and it
critiqued (of all people) Preet Bharara, who was then the U.S. Attorney for the
Southern District of New York. He had (in my then view) transgressed normative
expectations by refusing to resign, forcing Trump to fire him. Bharara was
within his legal rights to do this, of course; my criticism at the time was
rooted in my belief that the best response to Trump was to keep up traditional
standards of conduct and restraint.
Boy, was I wrong. And so were other
critics. We’d misjudged the situation and made a strategic error—one that
opponents of Trump are still making today. It’s time to correct that error. If
we want to have a real hope of reversing Trump’s authoritarian course, we all
need to stop playing tee-ball and start playing legal hardball. Trump’s
opponents need to stop showing automatic deference to historical norms and
limitations that ought, in a good and just society, be adhered to—not because
those norms are bad, but rather because it behooves us to suspend normal
decorum when the building is on fire.
NO ONE SHOULD WELCOME the coarsening
of normative behavior that will result. Nonetheless, opponents need to deploy
every legal tool in their toolkit to oppose Trump’s encroachments, whether or
not it is “appropriate” or “traditional” or “historically legitimate” to do so.
If opponents of Trump don’t fight to win, they will lose, plain and simple.
What do I mean by this? Here’s an easy
example: Trump abused the pardon power for personal gain and for the benefit of
his cronies. We can readily expect he will do so again. As I recently wrote in the Atlantic,
it is now that Biden needs to throw aside the constraints of “good governance”
and use the pardon power liberally, not to benefit his cronies but rather for
the ethical and moral reason of protecting his supporters and allies from
Trump’s revenge. Everyone from Liz Cheney to Gen. Mark Milley should be offered
as much protection from Trump as Biden can possibly give them before he leaves
the White House.
The range of unilateral options open
to President Biden in his remaining few days is surprisingly broad. All
options—to skip the inauguration, to provide more weapons to
Ukraine, to make legally binding commitments to NATO, and still others—should
be on the table.
Here’s one creative idea: At the end
of his first administration, Trump proposed to create a new “Schedule F” that
would convert many civil service positions to at-will positions whose
appointment he, as president, would control. The proposal was based on a novel
interpretation of a statutory authority that had never been
used in that way before.1
One of the principal promises Trump
has made is to re-implement his Schedule F proposal as a first swing of the axe
against the deep state. Of course, the fired employees will sue—but Trump’s
“fire first, litigate later” strategy would have significant effects, even if
the employees eventually won. Some employees would resign rather than fight;
others would be cowed into grudging subservience. And, in the end, even if only
for a brief period of time, Trump would be able to begin populating the civil
service with his sycophantic toadies.
There might be a way to forestall that
eventuality—if Biden is willing to play a little hardball. What would happen
if, hypothetically, the unions representing civil servants sued preemptively
(in, as the Republicans are wont to do, a district where a favorable jurist
sits) to seek a declaratory judgment that Trump’s legal interpretation was
wrong? And what if, instead of contesting the suit, the Biden DOJ conceded the
point and accepted a binding consent decree with enforceable terms favorable to
those who would be affected by Trump’s Schedule F order?
After such a decree, the litigation
posture of any effort by Trump to implement Schedule F would be quite
different: Instead of issuing an executive order premised on a novel
interpretation of a statutory text, he would need to directly challenge a binding
court ruling. Trump might, of course, still win out in the end, but there is no
reason to make it easy on him by sitting back and waiting for him to dictate
the terms of legal engagement.
The options for Democrats aren’t
limited to the administration. As Norm Ornstein points out, the Democrats still control the
Senate for the next two months. Not only should they fill as many judicial and
regulatory positions as possible, but they should also hold preemptive hearings
on Trump’s worst cabinet picks and most odious policy proposals.
William Kristol and Andrew Egger
recently observed that, for different reasons,
neither Republicans nor Democrats in Congress seem eager to push back against
Trump’s predations on the rule of law, competent governance, and even the
prerogatives of Congress itself. But if congressional Democrats are lax now,
when do they expect to reconstitute their strength? They should act to the very
limits of their legal power to prevent Trump from exceeding his.
Why not use what power is available to
erect barriers to authoritarianism, even if it means getting down in the mud to
fight with the pig? Please, Democrats, with all the time you have left in
power: Play hardball, damn it.
For those interested in the details, Trump proposed to use a provision that
exempted certain positions “of a confidential, policy-determining,
policy-making, or policy-advocating character” from civil service protections.
Before Trump, everyone understood the language to apply only to a small number
of positions traditionally filled by political appointees.
