How we got here and what to do

Our federal government has been behaving with an open contempt for the rule of law: declaring that the president is the sole interpreter of the law; ignoring judicial orders; threatening judges (and now even arresting them); and punishing any law firms that dare oppose them.

What can we do about it?

In the short term, I think that simply speaking out against these abuses is very important. Many high-profile businesses and law firms still appear afraid to do so, even though the Wall Street Journal editorial page, the American Bar Association and a majority of Americans agree on this issue.

It's totally understandable that some - federal employees or visa/green card-holders, for example - may not feel safe voicing opinions publicly. But I think those who are in more secure positions should try to create a critical mass of support for the rule of law in this country that cannot be ignored or bullied away.

We can also attend events and rallies, donate to the organizations engaged in litigation on these issues, and continue to tell our elected representatives to prioritize the rule of law in their legislative efforts. All of this is critical in the time of crisis we find ourselves in.

To really figure out how we might emerge and recover from this mess, though, I think we need to explore what got us here and try to address those longer-term issues.

How did we get here?

I think it's common knowledge that people around the world are angry and frustrated with politics and elite institutions. In that environment, it probably shouldn't be surprising that it's politically popular to be seen as standing up to bureaucrats, academics and lawyers.

I don't have all the answers as to exactly where all the anger and frustration came from, let alone how to address it. But as a lawyer-bureaucrat that attended elite universities, I think I should make an effort to figure out why so many people are angry at people like me and see what changes we should try to make.

The best answer I've come up with is that while people have watched their buying power and wealth stagnate in the past several decades, that of the very richest has grown massively, and at the same time an elite ruling class has arrogantly lectured the masses about their supposed immorality and stupidity rather than doing anything significant to help them.

There is plenty in this kind of indictment that I instinctively want to argue back against, along the lines of “come on, not all "elites" are rich, and a lot of us have been trying to do some good - it’s not easy!” But I think it's more productive to focus on what I think are the best points being made.

To me, the wealth and income inequality numbers speak most powerfully. Access to the country's, and the world's, resources is incredibly unequal. And even if you lean libertarian but recognize the need for a somewhat stable and reason-based society, I'm not sure how we can expect to have a calm, rational debate about complex race, gender, immigration or environmental policy when most people have good reason to think the entire economy is stacked against them.

We can debate what caused this massive inequality, but the experts I trust mostly seem to conclude it is primarily driven by technological advancements like automation and somewhat by globalization. I’ll be honest: I’m still not sold on globalization being bad overall, especially since I understand it has reduced inequality between countries even if it has increased it within countries.

But if the inequality resulting in part from globalization isn’t getting addressed, people have good reason to be upset about it, and foreign countries tend to be better political targets than technology. So for as long as I can remember, plenty of people have loudly opposed unfettered globalization. But at the same time the elites of the world have, until pretty recently, remained quite committed to free trade despite this undercurrent of discontent.

So in a sense, I am honestly impressed that a leader was willing to follow his policy convictions on this topic and impose sweeping tariffs despite the predictable and uniform fury he faced particularly from the economic elite across the globe.

But I don't think that even thoughtfully designed tariffs would fix inequality. Technology is going to continue to advance, and the world is already globalized. All that seems certain right now is that everything is going to get more expensive and investment will slow while the trade wars play out. Maybe companies will eventually decide to build more plants domestically if they decide that tariffs are going to be in place long-term. But I think automation will continue to drive inequality regardless.

So what else should we do?

When inequality is out of control, people are going to be unhappy even if GDP soars and aggregate wealth multiplies. From a psychological perspective, no one likes to see others pass them by even if they themselves are getting better in an absolute sense.

I don't think we should try to do away from economically driven inequality entirely; I see the value and importance of rewarding innovation and hard work. But, given where we are today, I think we desperately need more policies that enable the general public to share in the economic gains that have gone to a concentrated few, even if there is some economic inefficiency associated with those policies.

This means that I think elites like myself should be thinking about how we can sacrifice for the greater good. This could mean supporting inclusive and affordable housing even if it changes the character of neighborhoods and towns. It could mean allowing more widespread participation in education in part by going after some of education's out-of-control costs and gatekeeping. It could mean richer individuals paying more for public goods and services in order to make it less expensive for others to access them. It could mean protecting and encouraging entrepreneurship through stronger antitrust law. It could mean plain and simple redistribution through the tax code.

At the same time, I think elites also need to listen more and stop assuming people who don't immediately agree with us are just wrong. This doesn't mean anyone should give up their convictions, values and informed decision making. But elites are not going to be successful if they view popular opinion as "noise" that can be ignored (this is the kind of characterization I have heard many times and unfortunately may have been guilty of myself).

To me, that means leaders should always be trying to figure out how to find some common ground even with those who don’t generally support them, to the extent they can without compromising their principles.

Sadly, though, over time our society seems to have warped all political preferences into fundamental principles. Anything that supports businesses is seen as betrayal of the working class by the left; anything that regulates businesses is seen as communist by the right.

I think we should each try to break this tendency. If you are a liberal, I suggest reading sources like the Wall Street Journal; if you are a conservative, the New York Times. And don't just hate-read; really try to understand the other perspective and learn something. On the issue of rule of law, for example, it is worth liberals taking seriously the fact that many conservatives found the prior administration to often be less than fully respectful of legal boundaries.

I also think some of our overall polarization could be a result of our unusual electoral system that encourages all political views to be sorted into two doctrinaire political parties. I would love to see that reformed, but I’m not holding my breath given all the entrenched interests at play.

Fortunately, there is another aspect of the U.S. system of government that is very good at enabling different political views to thrive and learn from each other. That aspect is our federal system, in which states and local governments are able to operate mostly independently from the national government.

As a member of state government, I have seen how many critical issues are actually dealt with outside of the national stage. I think we should take advantage of that more and shift our focus to more local issues rather than expecting every issue to be resolved in a uniform way nation-wide. Maybe shifting this mentality could make people less devastated when their party loses and lessen the instinct of federal leaders to anxiously push through partisan policies as fast as possible before they lose power again.

There is a limit to what state and local governments can do, though. The federal government has a role to play in tackling inequality. It can be hard for any one state to impose policies that require elites to make sacrifices when elites can pretty easily move to a a different state (often more easily than moving to another country). So, I still think we need to, somehow, build an inclusive politics that can enact and sustain meaningful policies at a national stage that address inequality.

In the meantime, though, I remain seriously worried about the federal administration's attacks on the rule of law. If we cannot defend our most core political values - freedom of speech, free and fair elections, and the rule of law - then we risk creating a new kind of elite, one based on personal favoritism. That kind of elite could turn out to be even harder to upend or budge and could exercise power far more arbitrarily than the system that it replaces.

So, I hope that more leaders will become more vocal with their opposition to rule by whim rather than by law. And I hope that, before it's too late, enough people will recognize how critical it is for society to have an independent judiciary and to provide access to effective legal representation to those who are politically disfavored at any given time.

When we really reflect on it, I think the truth is that we all have some authoritarian in us. If we generally agree with someone's preferences, it can be comforting to let them decide things for us, especially if the decisions are hard. And it can be thrilling to impose our preferences on others (maybe thinking, “they’ll see the light eventually”). Supporting or enabling authoritarian leaders can give us both these feelings of comfort and thrill. It only really hurts when we are on the receiving end of a decision that affects us or we deeply disagree with, and maybe we can get over that too, if it doesn't happen to us too often.

So, if we are to avert a slide into authoritarianism, leaders across the rest of society on all political sides will not only need to prove that they can be more capable policymakers. They will need to overcome their own desires to control everything and their supporters’ natural tendencies to enable their worst instincts.

To pull this off, responsible elites are going to need to figure out what they are willing to live without to make society a lot fairer and a lot more respectful of others’ views.

What are we each willing to give up to help us get there?

I will be thinking about it and writing more.