What defines the Trump presidency’s approach to administration? The main themes are no doubt the turbocharged unitary executive branch, concentration of policy control in the presidency, evasion of procedural constraints on regulatory change, and clawing away of congressional spending control.

I think there is another, subtler theme as well, though. In a new essay on Attempted Administrative Entrenchment in the Second Trump Administration (one Jason Willick was nice enough to discuss in a recent Washington Post column), I suggest that the administration may be pioneering some techniques for creating durable policy change through unilateral executive action. In other words, it may be looking for ways to entrench its preferred policies and insulate them against future reversal without going to Congress or even engaging in conventional rulemaking.

I do not know whether this effort is self-conscious, but it would certainly make sense if it were. As readers surely know, the polarized partisan agendas of contemporary presidents have produced a dispiriting cycle of flip-flopping across many domains of policy. Aware of this reality, executive officials might naturally want to break the cycle and lock in their preferences. Getting legislation through Congress, however, is hard—in part because of the same polarization that encourages unilateral executive action—and even conventional rulemaking can require considerable effort and face uncertain prospects in court.

Making matters worse, as a result of the aggressive (and unlawful) theory of unbounded enforcement discretion that has lately taken hold, even legislative victories may not count for much without control of the executive branch. Congress enacted bipartisan legislation banning TikTok in the United States absent Chinese government divestiture, but TikTok survived. Building off earlier examples, President Trump suspended the law by simply promising that it would not be enforced.

So what to do? I think at least a few innovations in the second Trump administration can be understood as responses to this dilemma.

The first is widespread use of what Jody Freeman and Sharon Jacobs have called “structural deregulation.” By firing staff and impounding or diverting funds (often in questionable ways), the administration has stripped capacity from disfavored agencies, thereby impeding their viability as policy tools for future administrations. Though in some cases the lost capacity might rapidly spring back, in most cases the loss of personnel and know-how will at least complicate future efforts to ramp regulatory efforts back up. As Freeman and Jacobs put it, structural deregulation “forces a President’s successor to take time away from governing in order to rebuild what has been torn down.”

The second is a heavy use of high-profile deterrent remedies—something I call “shock-and-awe deterrence” in the essay. Consider here the administration’s approach to universities. Early in Trump’s second presidency, the administration went after some institutions based on their mishandling of certain antisemitic incidents and resistance to the Supreme Court’s invalidation of affirmative action. But while some universities had indeed taken on legal risk, the administration’s response seemed calculated to go beyond what they could have anticipated—and indeed what the law itself entitled them to anticipate.

Thus, rather than follow legally prescribed procedures and substantive limitations on funding cutoffs, the administration abruptly suspended all federal funding to certain major research institutions. By gaining leverage in this way, it then negotiated settlements requiring massive penalty payments ($221 million in the case of Columbia University) plus a commitment to colorblind hiring and admissions and acceptance of intrusive outside monitoring. 

Though I have no inside knowledge here, this approach seemed calculated to inflate the expected cost of future departures from the administration’s preferred view of the law, even in the face of uncertainty about when and whether another administration with that view will hold office. When the political winds shift, internal constituencies at many universities will want to resume diversity initiatives and other practices that this administration considers unlawful. Such universities, however, will now have to worry that, if they do so, a future Republican administration will later come after them hard, possibly in unpredictable and even unlawful ways that are nonetheless difficult to counteract. No school wants to end up paying $221 million.

A third arguable innovation along these lines is the activation of private lawsuits. It may be a bit of a stretch to call this one a technique of entrenchment. Still, given the conventional association of plaintiff-side tort litigation with progressive politics, it’s striking that the administration’s university settlements require public disclosure of admissions data—something that seems designed to facilitate private litigation in the event of civil rights noncompliance.

In addition, in an even more striking development, the administration has pioneered use of the False Claims Act to police federal contractors’ compliance with antidiscrimination laws and immigration rules. If courts accept these creative legal theories, private litigants can pile on and act as force-multipliers. That is so because the FCA allows private parties to sue on the government’s behalf as “qui tam relators” and keep a portion of the recovery.

In at least three of its administrative innovations, then, the second Trump administration has seemed to be looking for ways to entrench its preferred view of the law through unilateral executive action. These examples are just illustrative; there are probably other innovations in this vein. For instance, although this tactic is in part copied from Democratic predecessors, this administration has also aggressively employed settlements and consent decrees as a way of undoing regulations and locking in preferred policies.  In any event, the three examples I’ve highlighted should suffice to prompt reflection about whether such strategies of administrative entrenchment can work and about where they are likely to lead us.

On the first question, it seems to me that these strategies will work to some degree, for the reasons I’ve already given (and Willick nicely emphasizes this point with respect to universities in his column).

As to the second question, though, these strategies’ very success will likely inspire copycat efforts to entrench other administrations’ preferences in the future. The next Democratic president might well apply structural deregulation to Trump’s expanded apparatus for immigration and tariff enforcement, pause and divert funds for institutions it perceives as politically hostile, and facilitate private litigation to enhance enforcement of favored laws.

In principle, this prospect should have a restraining effect: administrations from one party should appreciate that their precedents will later empower their partisan rivals. Such self-restraint, however, has not been evident in this administration, and I doubt any Democratic successor will be feeling magnanimous.

Zachary S. Price is a Professor at the University of California College of Law, San Francisco (formerly UC Hastings).