Are you aware that in our democracy the people least able to pay their debts are the ones who acquired expensive degrees to improve their earning potential? If you weren’t before, your ignorance has surely been remedied after no less than five rounds of Department of Education rulemaking aimed at relieving the distress of student-loan borrowers who found that—after years devoted to filing petty complaints over their professors’ verbal miscues—they were less upwardly mobile than they expected.
Under the Biden administration, the department worked with beaver-like diligence to appease this constituency, or at least its self-appointed representatives. Few priorities received more attention from the executive branch. Disinclined to the political exercise of negotiating with Congress, the Biden administrative preferred instead the esoteric, quasi-mystical exercises of combing statutes to uncover magical debt-nuking powers undiscovered by previous, less enterprising administrations. Whenever the fruits of their labors came under legal attack, as they often did, the Education Department deployed battalions of the executive branch’s lawyerly army to convince federal judges that the government had not taken leave of its senses.
Except that now, after all that trouble and effort, the Department of Education is withdrawing these regulations. Specifically, on Dec. 20, the department announced it was withdrawing the two most recent rules (one already enjoined by a federal court). Had student borrowers suddenly found their financial footing? Not exactly. The Associated Press reports that this is merely one part of “an administration-wide plan to jettison pending regulations to prevent President-elect Donald Trump from retooling them to achieve his own aims.” The department’s notice of withdrawal more or less confirms that cynical reading when it closes in an “oh, by the way” sort of tone, that the incoming administration would have to repeat the laborious negotiated rulemaking process to implement any new policy in this area.
The strategic withdrawal is not just a byproduct of electoral defeat and political transition, but an outward sign of the status of our democracy. President Joe Biden began his term rescinding a whole slew of Trump-era regulations, many of them policies underwriting relative security at our southern border. Now, he ends his term by pulling back his own regulations like a defeated general ordering his soldiers to pull up rail tracks as they retreat.
In this respect, Biden built on the legacy of his former boss, Barack Obama, famous for circumventing Congress with his pen-and-phone approach to policy. Obama, it so happens, has been busy post-election performing moving renditions of his famous “our democracy” shtick. In the sound bite making the rounds across social media, the oracle of Kalorama complained that, “The election proved that democracy is pretty far down on people’s priority list.”
What is the quality of that fading democracy for which Obama wistfully mourns? The appeal and the drawback of the “our democracy” pitch has always been its Rorschach-test quality. It invites people to see whatever they want in it, and thus what “our democracy” is depends on who you ask.
To this observer, government by federal regulation has become a dominant feature, if not the very practical substance, of our democracy. And that goes a long way in explaining the “your truth vs. my truth” quality our democracy has assumed with policies now whiplashing suddenly upon the installment of new agency heads.
“Our” priorities in this democracy are increasingly implemented through the executive branch, not Congress. Thus, the varied and nuanced hopes of the American electorate tend to collapse into the political and electoral expedients of one man and his cadre of administrative courtiers.
Long before Obama trotted out the “our democracy” line, an oft-repeated promise about our republic is that it would be a government of laws, not men. Again, a little soft, a little Rorschach-y. But it has become harder to reconcile current practice with even the flabbiest, most permissive interpretation of that promise.
The regulations of the executive branch are sometimes called legislative, and whether called legislative or not, they purport to bind citizens. Yet they bear few of the hallmarks of law commanding public respect, instead of begrudging obedience. They are often frivolous, factional, transient,—they are too imprinted by the desires of an individual will to be mistaken for law in any deeper sense. Regulatory practice looks, in short, like government of men, not laws.
Such executive regulations seem all the less law-like inasmuch as they often undermine specific laws written and enacted by past Congresses. That is true in the case of student loans. The outgoing administration’s interpretations of the HEROES Act and Higher Education Act would have made marginal provisions the whole force of those enactments, and ancillary purposes like meliorating individual borrowers’ financial distress would have swallowed Congress’s design for a system of student loans that would generate funds for future loans.
Regulation was an enticing means of enacting a student-loan-forgiveness policy because it promised political rewards within particular constituencies while avoiding the policy’s unpopularity with the broader public. But more generally, the emergence of regulation as ersatz legislation has made the old legislative approach look like an anachronism. Obama illustrated the ease with which statutes like the Immigration and Nationality Act could be nullified by executive order and, in the process, turned traditional legislation into a bond that is difficult to forge but easy to escape.
But that is not inevitable. Legislative achievements are still presidential legacy-makers. Legislation remains a powerful, albeit not tamper-proof, means of shaping the administrative state and setting its priorities. It sets a baseline with which all future attempts at regulation in the area must reckon. The more care Congress takes to cabin administrative discretion during legislative drafting, the less the danger of legislative priorities being effaced by later executive revision.
Mercifully, even the extant discretionary space for administrators is on the wane. Last term, the U.S. Supreme Court saw sense after 40 years and ended the practice of deferring to agency interpretations of ambiguous laws under the doctrine known as Chevron deference. Administrators now have less leeway to rewrite laws according to the tastes of the moment.
Governance by regulation suits the superficial, impatient tastes of democracy in a social media age. And if we’re being fair, it is hard to blame any president for not wanting to dress up his dearest priorities as guest stars on the next episode of the Real Housewives of Capitol Hill. But the path to defining our democracy, such as it is, still runs through legislation. If the incoming Trump administration wants a durable legacy, it will take every available opportunity to install its priorities in our nation’s legislative architecture. Otherwise, in four years’ time, it may be Trump’s deputies who find themselves pulling up the rails.
