The concept of “harm reduction” has been subjected to a curious form of concept drift over the past few US presidential election cycles. Although “harm reduction” originated in alternative public health circles, where it most often refers to tactical approaches to addiction treatment which center the decriminalization of drug use, the term has been mobilized frequently to justify left-wing votes for increasingly questionable Democratic presidential candidates. The logic of the term’s mobilization in this context is that while Democratic presidential administrations are clearly deeply flawed from the perspective of the left, voting for Democratic presidential candidates is still principled insofar that they will necessarily act as a stopgap against further right-wing drift.
The “harm reduction” approach to presidential politics has always been dubious in practice. The US has continued its drift towards an increasingly reactionary future despite Biden’s presidential administration. At least in theory, however, the “harm reduction” tactic did contain a certain truth. Democratic presidential administrations could arrest the right-wing drift of the country, if they so desired. The contention here being that Democratic presidents could protect certain gains through governing by executive order or producing a more favorable judicial branch. Whether they actually would do so was, of course, a different question entirely, but even the very fact of Democrats in power could, at the very least, temporarily block the advance of the right.
But “harm reduction,” at least with regards to presidential politics, no longer makes sense even in theory. Between 2016 and 2020, the Republican Party accomplished a political goal decades in the making by effectively taking control of key parts of the judicial branch, a result of a historic flurry of appointments by the Trump administration that were closely overseen by then-Senate Majority Leader Mitch McConnell. The Republican supermajority on the Supreme Court is, of course, the most significant aspect of this, but majorities on a number of lower courts are also important. Republican momentum in the judicial branch is what allowed the Republicans to serve Biden’s presidential administration and Schumer’s Senate majority with world-historic defeats in the form of the Dobbs v. JWHO, Loper Bright Enterprises v. Raimondo, and Trump v. United States Supreme Court decisions.
These decisions have radically altered the domestic political terrain with regard to presidential power by accomplishing two things: (1) Republicans have effectively taken reproductive rights, one of the key means by which “harm reduction” is rationalized as a principled approach to presidential politics, off the table as a federal issue for the foreseeable future. (2) The judicial branch has largely declared itself both a meta-legislative and -executive body, capable of blocking and altering legislation, as well as overruling and directing the actions of federal agencies. In other words, a largely Republican activist judicial branch, with a supermajority on the highest court, has asserted its own political authority over the other branches of the federal government. In effect, the Republicans have established a means by which they can govern from the bench when out of power in the other branches, meaning Republicans can carry out much of their agenda whether or not they hold the presidency.
In this context, the logic of “harm reduction” as it has been applied to presidential politics, always dubious in practice, also collapses in theory. Democratic presidents can no longer block the far-right drift of the country even if they wanted to, since their own authority, at least on domestic issues, has been undermined by Republican control of a judicial branch now imbued with enormous legislative and executive powers. Any domestic action taken by a Democratic president can now be subject to immediate evisceration by the courts. For instance, this is what has occurred in the case of SAVE, the Biden administration’s student loan repayment program. Even worse, any temporary “harm reduction”-type actions, such as executive orders regarding certain protections, have become more dangerous endeavors, since the courts can counter such measures through judicial review, codifying their unconstitutionality.
In recent days, some “harm reduction” acolytes have claimed that the tactic remains principled because a Harris administration may have a chance to appoint two Supreme Court justices. However, this will not suffice as a form of “harm reduction.” The concept of “harm reduction” assumes that a vote for a questionable Democratic presidential candidate is principled because of the immediate stopgap it will provide. The remote possibility of Harris’ nominating two Supreme Court justices sometime in the future does not provide this.
It may also be argued that Democratic presidents can still appoint favorable agency heads and federal judges beneath the Supreme Court. This is illusory. Each of these appointments will be severely limited by the reactionary character of the Supreme Court. Decisions by the federal judiciary are obviously appealable to the reactionary bench itself and the conduct of federal agencies is similarly cabined-in by the court.
Federal agencies generally do two things–promulgate rules and enforce them. Both are appealable to the federal courts, though the former may take slightly longer. See, for example, a Federal Judge’s enjoining of the NLRB’s joint employer rule; the Fifth Circuit Court’s recent decision that the National Labor Relations Board did not have the power to order Elon Musk to delete a tweet which the Board found to be a threat in violation of the Act. Or consider the injunctions facing the NLRB more generally in the Fifth Circuit, where District Court judges are stopping ULP proceedings from even commencing, under the theory that the NLRB’s Administrative Law Judges, who hear ULP cases, are too protected from firing by the President. Finally, under Loper Bright, the Courts will increasingly substitute their own judgment for that of the agencies–with the result being that winning a Presidential candidate will only become valuable for the purpose of pursuing favorable judicial appointments. True, there may be some role that agency heads play in keeping truly devastating cases out of the courts by settling or directing them to less reactionary Circuits. But this conduct does not remove or even block the cause of harm, merely mitigating its magnitude or delaying it, as the Supreme Court looms over every Circuit.
In short, the war on the administrative state has already commenced. Whatever harm a single executive might be able to reduce pales in comparison to harm unleashed by the unregulated labor markets, contaminated drinking water, environmental pollutants, and financial speculation that Republicans can now effectively pursue through a far right activist judicial branch politically empowered by recent landmark decisions.
“Harm reduction,” once somewhat reasonable in theory, no longer applies to presidential politics in any meaningful sense. The only path which could possibly lead back to a situation in which this form of “harm reduction” is even remotely theoretically sound would be for a Democratic presidential administration to pack the court system, an action that would likely lead to a political crisis. Democratic Party leadership shows no signs that they will pursue this path.
The current conjuncture is a direct result of the Democrat’s world-historic defeat on the judicial front. However, the fact that the above Supreme Court decisions prompted very little resistance from either the Biden administration, Schumer’s Senate majority, or the Democratic Party’s hardcore base should reveal that “harm reduction” was never a possibility in practice, even if it was tenable in theory. It is difficult to imagine a political party which allowed itself to be world-historically defeated on the judicial front while it was nominally “in power” acting as a stopgap against anything.
Solidarity,
-Christopher Carp
