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.
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.
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