It is clear now how the Trump Administration plans to handle what remains of modern administrative law while advancing its agenda. The plan is to break it.

Just look at the Administration’s conduct over its first 100 days. Wacky executive orders that are no less dangerous for becoming instantly infamous. Abuses of interim final rules, direct final rules, and “good cause” rulemaking. Changing compliance dates without rulemakings. Collusive litigation. Claims that huge swathes of law simply do not apply to the Administration’s plans. And on, and on, and on.

In light of everything we’ve seen, it is clear what the endgame is: break the law enough times and in enough ways that an outgunned band of attorneys general, private litigants, and nonprofits can do only so much in response. People who represent everyday Americans, not oligarchs, have finite resources and face standing and other doctrines that limit our ability to stop the deluge. At the end of the day, the Trump Administration is probably making an accurate calculation—that given how stacked the law is and has been against working people, asymmetric lawfare will let the Administration accomplish much of its agenda of corruption and corporatism through a barrage of lawless actions.

This is their plan. 

So now we ask: what has been the plan—what is the plan—for those who believe in consumer protection, worker protection, environmental protection, or anything other than raw corporate power? How will we turn our vision into a reality? Because it became crystal clear to some of us over the past four years that we did not and do not have a path to actually accomplish any of these goals.

Where does that leave us?

We believe that administrative law—the role of courts in our democratic self-governance—must be reconsidered from its foundation.

If these last four months of lawlessness have taught us anything, it is that we cannot afford to hold onto pipe dreams of resuscitating the quaint administrative law framework of yore, or to tinker at the edges of doctrine. It is simply madness—and it is certainly not democratic—for one side to chain itself to a set of rules that it alone is willing to adhere to or be restrained by. The plan cannot be for Democrats to win elections and lose gracefully in the courts on policy changes that help working people, then hand over the keys to Republicans who tear everything that previously existed to the ground.

In the Biden Administration—first in rushed and hushed conversations, and then with increasing earnestness and volume—some lamented the role “losing the right way” played in getting the country to this tragic point. There was this notion—often not fully stated—that it is honorable to take careful and deliberate action, abide by all the norms of the bureaucratic priesthood, and promulgate policies that crash into the brick wall of conservative cynicism masquerading as a legal movement. “They tried hard” is not an outcome that we should be satisfied with, and it is certainly not enough for the people who need and deserve a government that works for them.

Here is what we have learned about the present state of administrative law from working on the front lines of the administrative state.

First, the noble goals that underlie the Administrative Procedure Act are being perverted. For every helpful comment in the rulemaking process, there are ten cryptic statements submitted only to preserve challenges in judicial review. Industry uses the promise of participatory democracy and procedural safeguards to flood the zone with lawyers and lobbyists who tilt the system against the little guy more than any government bureaucrat ever could. Meanwhile, they scream, litigate, and lecture about the sanctity of the rulemaking process during Democratic administrations and then proudly tout on LinkedIn their collusive litigation and lobbying for illegal orders and rules during Republican ones.

The notice-and-comment process has worthy motivations, and sometimes it may live up to them—but in practice it has more often turned into a game of gotcha for K Street and corporate interests that makes it impossible to get anything done. Understanding that reality throws into question the underlying premises of administrative law as we were taught it, as well as whether our legal institutions and doctrines as currently structured are up to the task of running a country.

Second, the abuse of venue and associational standing by corporate special interests and right-wing ideologues has created a lowest-common-denominator veto point in administrative law. We must recognize that single-judge districts, reactionary judges, and a deluge of dark special interest money have turned large chunks of administrative law (such as arbitrary and capricious review, final agency action, and standing) into basically whatever a handful of radical district judges say it is. Notably, Republicans are now challenging nationwide injunctions that hem them in—but not the effectively nationwide relief that trade associations and special interests procure for their members. If we do not address the ability of any trade to team up with a local Texas or Louisiana business group to bring a case that is rigged to win, we will continue to be unable to effectuate nationwide policymaking, full stop. If you think that’s hyperbole, just consider the fate of protections around credit card late fees, noncompetes, and any number of other topics.

Third, we need to recognize how individual changes in the law add up to a larger dismantling of our system’s ability to produce an economy that treats people fairly. Many have noticed that Loper, the Major Questions Doctrine, and Corner Post have at least significantly changed, and possibly completely revolutionized, how judges review government action. Any executive branch attempt to use the tools of government in service of a more just society—indeed, any previous attempt to do that—is now extremely vulnerable. But that is just a piece of the picture. The systematic dismantling of the tools of our government to tackle the pressing concerns of the day—to create and shape an economy and country that works for most people, not just bankers and Silicon Valley billionaires—also includes changes in other areas of the law, such as enforcement and remedies. The TransUnion, Jarkesy, and AMG cases are allowing companies to break the law with impunity without fearing accountability from private plaintiffs or the government. From administrative law to standing and beyond, we need to be thinking about how the system works to actually solve problems, holistically.

Finally, we must acknowledge that the Trump Administration’s corruption and legal maximalism is part of the same cynical wave that we have seen washing over the courts these past few years. The claim that a rule does not need to go through notice-and-comment if President Trump says so is fundamentally similar to the “get-out-of-text-free cards” that conservative judges have been finding in their stockings. We should not be asking what we fear more, the executive branch or certain elements of the judiciary. We need institutions that work for actual human beings, up and down the line.

Our response to the current aggressive lawlessness from the executive therefore cannot be to push for new laws that further restrain the government from delivering for working people. The urge to protect human beings from a reactionary leviathan is understandable. But we are extremely skeptical that law alone will be enough to stop lawlessness—that judges and rules can stand up to pure political power. We must respond to politics with politics. We must recognize the role that frustration with a government that never seems to do much for everyday Americans had in creating this mess. The only effective response to the Trump scourge will be to offer a viable alternative, premised on a government that can deliver real solutions to the widespread discontent millions of Americans feel. That government has to be able to take on corporate abuse that rigs the economy against working people, the big tech oligarchy that poisons our children, and polluting industries that boil our planet.

What should we do with these lessons? Tinkering around the edges will not be enough. We must be willing to start from a blank piece of paper and begin with a fundamental principle: the law must be able to sustain a government that can address the problems Americans desperately need it to solve. We need protections from lawlessness and we need a system that works. There will be no movement on any number of critically important issues if we do not get this right. Policy experts across fields cannot afford to leave this task only to specialized administrative law practitioners in the academy or elsewhere. It will be up to all of us who care about regular people living in communities across this country to rebuild a legal system that can actually deliver for them.

Seth Frotman is a visiting senior fellow at the Center for Consumer Law and Economic Justice at the University of California Berkeley School of Law and the former general counsel of the Consumer Financial Protection Bureau.

Brad Lipton is a visiting senior fellow at the Consumer Federation of America and the former senior advisor to the general counsel of the Consumer Financial Protection Bureau.