Thoughts for Inauguration Day

Why defending process won't save us — and what might

On inauguration day 2017, I wrote this:

Most importantly, remember, the status quo isn’t worth protecting. It’s so easy to be in reaction, on the defensive, fighting for the world we had yesterday.

Eight years later, the status quo still isn’t worth protecting. I know that’s quite a blanket statement, and yes, I think things like the independence of the civil service and democracy are worth protecting, and yes, I worry about both. But we have to grapple a lot more honestly with why so many people voted for massive, disruptive change, even potentially at the cost of the core principles and values we are supposed to hold dear. Take, for instance, the rule of law.

In The New York Times a few weeks ago, Stephen E. Hanson and Jeffrey S. Kopstein characterize the incoming administration’s patrimonialism (rule through personal power and patronage) as “an assault on the modern state as we know it.” Noting that Trump won the presidential election fairly, they correctly assess that reversing this assault “will require more than a simple defense of ‘democracy.’ …The threat we face is different, and perhaps even more critical: a world in which the rule of law has given way entirely to the rule of men.”

I agree. The rule of men is fundamentally inconsistent with the principles and values of our nation, and I do not welcome any nepotism, graft, or abuse of the system for retribution that may be coming our way. But why would half of voters tolerate this? The authors propose that “a slew of self-aggrandizing leaders has taken advantage of rising inequality, cultural conflicts and changing demography to grab power,” suggesting that the rule of law is a hapless casualty of other circumstances. But the principle of a nation governed by laws not men should have been non-negotiable. It should have been a crown jewel of our democracy for which all else could be tolerated. It wasn’t. The crown jewel was tarnished, and unless we understand the nature of that tarnish, we have little hope of returning that jewel to its rightful place.

It’s not particularly insightful to point out that if you feel the system is rigged, and the rule of law enforces that rigged system, you are unlikely to defend it. Rising inequality, as the authors suggest, does lead more and more people to conclude just that. There is a strong sense that the elite get away with murder while the poor do time for too many parking tickets.

But you don’t have to feel that the system is fundamentally rigged against you personally to entertain the possible benefits of “the rule of men,” or perhaps we could just say people. The reality is that people are frustrated with a system in which it feels like laws — a complex, tangled, often contradictory, seemingly arbitrary web of rules that most people don’t understand — dictate outcomes at the expense of reasonable human judgement. Philip Howard provides an endless stream of examples of rules winning out when common sense could have prevailed, like the homeless shelter in New York that couldn’t be built without installing a prohibitively expensive elevator, despite the fact that only the first floor was to be used, or the public school custodian who, despite being perfectly capable of fixing the broken window, instead had to file paperwork to order union labor to do so, leaving the window broken for months while the paperwork made its way through the bureaucracy and a team could be assigned. These aren’t edge cases. They are just the routine results of what Dan Davies calls the unaccountability machine, in his excellent book of the same name. Rule by people would allow for judgement, for just fixing the window. Rule by law leaves the cold air freezing the students while costs spiral.

When Biden took power back from Trump in 2021, there was enormous relief among lawyers in government. I know of one agency in which the mere statement “we will respect the rule of law,” spoken that first day of the Biden administration, elicited tears from otherwise buttoned-up bureaucrats. It’s entirely understandable, even touching, given the chaos that had ensued at that agency. But what followed during the next four years, across a Democratically-led federal government, was a retreat to the safety of process and procedure. It felt good and right after the lawlessness of the Trump years to luxuriate in its antidote.

But there is a cost to that refuge. Quinta Jurecic, also writing in the Times, describes the cost to the Department of Justice, whose leadership under Biden vowed to hold Trump accountable for the January 6th assault on the Capitol, and failed to do so, in part because of how slowly it moved. She writes:

The department did not dawdle quite so much as its fiercest critics argue. Still, if the goal in moving slowly was to turn down the political temperature, this seems in hindsight to have had the opposite effect. In explaining his thinking, [Attorney General Merrick] Garland said that “the best way to ensure the department’s independence, integrity and fair application of our laws” is to have “a set of norms to govern our work.” Protecting the rule of law, it turns out, requires more than maintaining the Justice Department’s own internal processes.…

After all, for the average person not steeped in Justice Department traditions, the first Trump administration’s model of law enforcement as a system of patronage — with preferential treatment apparently given to allies of the president — might seem appealing when compared with a plodding, opaque, rule-bound bureaucracy that nevertheless reliably manages to advantage those in power.

Those tears of relief in 2017 have turned to tears of despair in 2025. Process and procedure do not, it turns out, ensure just outcomes.

The Supreme Court is also not helping the reputation of the law. This SCOTUS is happy to put finicky procedural objections over substance when it serves them. Take Ohio vs EPA, in which the conservative majority (minus Amy Coney Barrett, thankfully) sided with states complaining about a new rule seeking to prevent upwind states from polluting the air of downwind states. Perhaps these justices just don’t want the EPA to be regulating at all, but they didn’t justify their decision on the basis of cost-benefit analysis or anything like that. Notice and comment rule-making requires agencies to respond to comments from the states and industry groups that opposed the rule, in this case more than 1,100 highly technical comments. The EPA did this, but the court decided in the states’ favor because the EPA didn’t address one of the criticisms at the level of detail that the Supreme Court wanted to see.

In other words, SCOTUS is not saying EPA shouldn't protect downwind states from the pollution of their neighbors. The court is saying that EPA should be more thorough in complying with procedure, even when that procedure is clearly weaponized by industry groups, who, as Nicholas Bagley writes, “carpet-bomb agencies with thousands of pages of comments, many of which contain unstructured technical information.” Nick continues: “The EPA’s sin, if there was one, was failing to adequately respond to a single oblique comment that it received.” Whatever you think about agency regulation — and I believe that agencies certainly do overreach and regulate badly at times — it’s still a bad look for the highest court in the land to put such a technicality over reasonable judgement.

What this kind of thing tells everyone — on the right and the left, elites and the working class — is that the rule of law is easily twisted by those in power to justify whatever it is they want to do.

credit: Carlos Eduardo Ferreira - Na escadaria do Fórum CC BY 2.0

That’s what the law has become for so many people. It’s not a blindfolded Lady Justice demonstrating impartiality and reasonableness, it’s a game of gotcha. I’ve ranted at length before about how public servants trying to deliver on the promises of our laws and policies are thwarted by the weaponization of the complexities of other laws, being told over and over again that the perfectly reasonable things they want to do to perform their jobs are illegal. Hanson and Kopstein believe that Trump represents “an assault on the modern state as we know it,” without acknowledging why the modern state might merit an assault.

Assaults hurt. I am currently engaged in an assault on my own body, and it is deeply unpleasant. Every three weeks now, I sit in a small room and let a nurse drip harsh chemicals into my bloodstream. The last time I did it, one of the chemicals burned so badly you can see my bruised and hardened vein through the skin. The week following I’m sick as my body tries to rid itself of their toxic effects, hopefully taking whatever cancer cells may have been floating around with them.

I’m not enjoying this, but the alternative is a highly likely return of cancer. If it returns, it will probably land in my bones, and it will be incurable. Chemo kills fast-growing cells, including healthy white blood cells in the bone marrow. Right now, ten days after a treatment, I’m highly vulnerable to infection. It’s the opposite of health, in the service of health. There are no guarantees, but this assault on my system gives me far better odds of living a normal, healthy life in the long run. Like every cancer patient, I vow to be healthier than ever when this is over. I’m done with alcohol. I’ll never skip another workout. There’s nothing like losing your health to make you treasure it.

Cancer has been my metaphor before. The unchecked growth of policy, process, and procedure that compounds over time and strangles our government’s ability to act in the public interest is much like a cancer. When I wrote that, I believed my cancer would be excised with surgery and that would be it. Now chemo is my metaphor. It seems we may go through some scary and even dangerous changes. But I believe there is something better on the other side of this for our country, too.

Here’s more of what I wrote eight years ago:

Most importantly, remember, the status quo isn’t worth protecting. It’s so easy to be in reaction, on the defensive, fighting for the world we had yesterday. Fight for something better, something we haven’t seen yet, something you have to invent. Find a thousand collaborators. Include people you disagree with. Meet division with imagination.

Here’s what I have to say today. I believe those last two bits even more than I did then. Our job now is to be changed, to reflect, to become better. We can’t do that without disagreement, without the imagination that comes from engaging across division. When we come out the other side of this, Dems can’t be who we are today. We can’t retreat again into a procedure fetish that serves no one, to start. Hell, the public isn’t putting us back in power if that’s our plan. We must find a new way.