In March, the Trump administration’s Equal Employment Opportunity Commission (EEOC) sent concerned letters to 20 of the nation’s top law firms. The problem? Big Law diversity and equity programs were likely illegal, said the administration, because DEI discriminated against male and white candidates. At first, such an attack could seem silly—the policy memo equivalent of a trolling tweet. But something more insidious was afoot. I used to work at WilmerHale, one of the law firms that received a letter. I was stunned by the rationale. The ostensible legal basis for the administration’s assertion is that these policies violate Title VII of the Civil Rights Act of 1964, which prohibits an employer from making decisions on the basis of characteristics such as race, sex, and national origin—traits that are often referred to as “protected classes.” Treating the race and sex of white men as protected classes is a startling move for the EEOC, an entity established by that same seminal 1964 law as part of an express attempt to combat discrimination against Black people. Even a cursory glance at its significant court decisions makes it apparent that the agency has been almost exclusively devoted to protecting marginalized groups. (The EEOC website still features a picture of Martin Luther King Jr.) > Trump has converted the casual right-wing rhetoric of “reverse racism” into a > legal standard without much thought. So how exactly can the EEOC jettison that 60-year history and transform overnight into an entity also devoted to protecting white men? By stretching the legal boundaries of what constitutes a “protected class” past the breaking point—with profound consequences for modern anti-discrimination law. When the Supreme Court held in 1954 that “separate but equal” was unconstitutional in Brown v. Board of Education, it did so in a 9–0 decision. The newly minted Chief Justice Earl Warren famously coordinated this unanimity in an effort to forestall backlash. But there was a cost: namely, the absence of anything in the opinion guiding how desegregation would take place. The Supreme Court directed the lower courts to coordinate the desegregation of public schools “with all deliberate speed,” but this ambiguous instruction did not result in uniform enforcement. The decade after Brown saw a massive wave of retrenchment by ­pro-segregation state lawmakers. The Civil Rights Act of 1964 sought to remedy this not only by establishing the EEOC, but by barring “discrimination on account of race, color, religion, sex, or national origin” in places of public accommodation, like hotels or restaurants. The concept of “protected classes” was born. “Racial desegregation in private employment,” as one scholar explained, “came only after Congress empowered” the EEOC. Despite this history, the agency never had a mandate to protect only historically marginalized groups; “race” is the protected class, not “Black people.” This has allowed conservative advocates over the last 50 years to slowly refashion “protected class” for their use. Barely a decade after the Civil Rights Act was passed, in some of the first major anti–affirmative action cases to arrive in the Supreme Court, white plaintiffs argued such policies in schools were illegal because they “discriminated against white applicants on the basis of race.” A bedrock of universities’ fight against racism, the conservatives argued, was racist itself. These initial efforts were unsuccessful. But through a series of cases, conservatives—particularly legal strategist Edward Blum—continued to push the Supreme Court to consider civil rights legislation to be reverse racism. Five decades of such work culminated in 2023’s Supreme Court decision in Students for Fair Admissions v. Harvard, which effectively killed affirmative action in higher education on the basis that it violated the equal protection clause of the 14th Amendment. Justice Sonia Sotomayor’s dissent criticized the decision as “cement[ing] a superficial rule of colorblindness” and “subvert[ing] the constitutional guarantee of equal protection by further entrenching racial inequality.” The majority’s interpretation of the 14th Amendment, she wrote, was “contrary to precedent and the entire teachings of our history,” and it belied the painfully obvious truth that “ignoring race will not equalize a society that is racially unequal.” Former ­Columbia University President Lee Bollinger summed up the sentiment of many higher education leaders: “It feels tragic.” The fact that the Supreme Court has now provided cover for white men to claim the status of “protected class” on the basis of race and sex does not give the EEOC carte blanche to do whatever it wants to shield them. The agency has a well-defined process: a formal complaint, evaluation, and then an investigation. But the recent letters to law firms from the EEOC elided these checkpoints. They stated simply that the inquiry “is exclusively based on publicly available information regarding your firm.” That’s such an egregious break from procedure that it prompted seven former EEOC officials to write to the current chair that “these letters appear to exceed your authority” under the 1964 Civil Rights Act. A separate letter by eight prominent advocacy groups, including the ACLU, similarly stated: “An EEOC Commissioner, even the Chair, has no unilateral authority to demand the requested information and certainly does not have the power to change or reinterpret federal anti-discrimination law based on political whims.” The obvious is true here: The agency’s moves are a scare tactic. The letters pay only lip service to the EEOC’s actual legal authority. They convert the casual right-wing rhetoric of “reverse racism” into a legal standard without much thought. And they stretch “protected class” until it begins to lose all coherence—which is perhaps part of the point. The EEOC appears to be trying to weaken the system of discrimination law in general. That’s particularly obvious when seen in the context of the EEOC’s other postelection moves—such as removing safeguards against discrimination on the basis of sexual orientation and gender identity as it did in late January, in seeming defiance of the Supreme Court’s holding in Bostock v. Clayton County that both are protected by Title VII. In total, the gestures undermine the entire legal basis for having discrimination protections. Because when even a government entity can pluck a legal phrase so completely out of its context and use it however it wants, who’s to say that a protected class—or the law, for that matter—should mean anything at all?

In the 1932 presidential election, Franklin Delano Roosevelt wiped the floor with his Republican rival, Herbert Hoover. He won the Electoral College 472-59, and bested the incumbent with 57 percent of the popular vote. It was a decisive rout at a time of crises—a devastating depression, soaring inequality, rising fascism in Europe—and FDR embraced it, launching his New Deal. “We do not distrust the future of essential democracy,” he declared in his inaugural address. “The people of the United States have not failed. In their need they have registered a mandate that they want direct, vigorous action.” President Donald Trump, who is doing his best to undo what remains of FDR’s legacy, made similar claims in January—and in his address to Congress on Tuesday—of his own, narrow, victory, itself a response to crises ranging from real (inflation, war) to entirely fabricated (an immigrant crime wave, the Big Steal). “My recent election,” Trump remarked during his inaugural address, “is a mandate to completely and totally reverse a horrible betrayal and all of these many betrayals that have taken place and to give the people back their faith, their wealth, their democracy, and, indeed, their freedom.”  He was hardly the only one invoking the m-word. “Trump is back with a big agenda, a mandate—and an axe to grind,” noted a Politico headline. Management and Budget officials justified their freeze on federal grants and loans based on “the will of the American people,” who had given Trump a “mandate to increase the impact of every federal taxpayer dollar.” Elon Musk, who has glommed onto Trump like a ravenous limpet, told White House reporters that “you couldn’t ask for a stronger mandate” to eviscerate the administrative state: “The people voted for major government reform, and that’s what people are going to get.” Did they really? In his speech on Tuesday, Trump claimed—absurdly—that the November election “was a mandate like has not been seen in many decades.” In fact, Trump won less than half of the popular vote—which, given the turnout, amounts to less than one-third of registered voters. His margin of victory was the tightest since 2000, the fourth tightest since 1940. Subsequent polling showed solid majorities opposing his tariff plans, birthright citizenship ban, withdrawal from the Paris climate deal, January 6 pardons, and the renaming of the Gulf of Mexico. (People hated that.) Even Trump’s own supporters deemed it unacceptable for him to impose loyalty tests on federal workers (58 percent) or to pardon friends or supporters convicted of crimes (57 percent). And this polling came before Trump unleashed Musk and his post-pubescent underlings on federal agencies like a swarm of diseased locusts. “In the US, usually claiming a mandate is done when a victory has been particularly large,” Terry Royed, a political scientist at the University of Alabama and co-editor of the 2019 book, Party Mandates and Democracy, told me via email. “Trump’s popular vote margin was not large.” And when you consider his Electoral College margin and House and Senate swings, “Trump didn’t do super-well there, either,” he added. > FDR claimed mandates, too. But unlike Trump, he was reelected by a wide margin > and his policies were very popular. Lyndon Johnson in 1964. Richard Nixon in 1972. Ronald Reagan in 1984. Those were big, decisive victories. But mandates? Marquette University political scientist Julia Azari, who scrutinized more than 1,500 presidential communications for her 2014 book, Delivering the People’s Message: The Changing Politics of the Presidential Mandate, questions the entire premise. Take 1964, she says: “Some people were voting affirmatively for LBJ’s agenda, but what really fractured the Republican coalition and led to that landslide was the fear of [Barry] Goldwater and the unpopularity of the things he was saying. And even there, there’s a lot to choose from.” Azari views mandates as merely a “construction”—an idea that has been used by monarchs, dictators, and (small d) democrats alike to justify their power since at least as far back as imperial China, when dynastic kings asserted a “mandate of Heaven”—a divine right to rule. The Western notion of a mandat—as a command or judicial order—came about amid 16th century upheaval in Europe, as Reformation figures began challenging the hegemony of the Catholic Church. Before then, “authority and inequality were linked; men of wealth and noble birth were also in charge of exercising the functions of government. The vast bulk of the population was politically irrelevant,” the late German-American sociologist Reinhard Bendix—who was expelled from secondary school in 1933 for refusing to give the Nazi salute—wrote in his 1978 book, Kings or People. “After 1500, the rigid bond between authority and inequality loosened.” The first American president to use the mandate concept as a power flex, Azari says, was Andrew Jackson, a Trump favorite. Elected in 1832, Jackson set out to destroy the nation’s fledgling central bank, she wrote, “rationalizing his actions by claiming the president enjoys a special popular endorsement.” Eighty years later came President Woodrow Wilson, whose racist segregation of the federal workforce is echoed in Trump’s DEI purges—and who, in 1908, wrote of a victorious presidential contender, “Let him once win the admiration and confidence of the country, and no other single force can withstand him, no combination of forces will easily overpower him.”  Presidents of both parties, including Bill Clinton and Joe Biden, have since touted their electoral results to advance their agendas. But Trump and his minions have taken the claim to outlandish extremes, as if winning an election can empower a president to defy democratic norms, federal law, and the Constitution itself. As if the people had elected a king. (Trump has even hinted of his own mandate from Heaven, declaring, of his fortuitous turn away from the assassin’s bullet, “I was saved by God to make America great again.”) Mandates are typically invoked, Azari has observed, when a president is on the defensive or when he seeks to vastly expand his powers. Both apply to Trump—whose approval ratings in reputable polls have never exceeded 49 percent—but also, interestingly, to FDR, who, frustrated by a conservative Supreme Court striking down some of his New Deal policies, declared his 1936 re-election results a mandate “to save the Constitution from the Court and the Court from itself.” The following year, he backed a bill, which failed, that would have let him add six new justices to the court. (Trump’s toadies are calling for the impeachment of judges who rule against his executive actions.) Some within Trump’s brain trust are openly supportive of his authoritarian ambitions, viewing the dismantling of government as a counterrevolution against an antidemocratic bureaucracy. “We are living under FDR’s personal monarchy 80 years later—without FDR,” the billionaire tech investor Marc Andreessen said on a podcast in December. Andreessen was paraphrasing his “good friend” Curtis Yarvin, a self-styled political philosopher of the tech right who has lamented America’s “kinglessness.” Now, he added, “you need another FDR-like figure but in reverse…somebody who is actually willing to come in and take the thing by the throat.”  But voters, for the most part, did not sign on to wipe out FDR’s accomplishments. Indeed, unlike Trump, FDR was reelected by a lot. He won 60 percent of the vote, and took every state except Maine and Vermont. Mandates may not be real, Azari emphasizes, but margins matter. “There was a lot of popular support for the New Deal,” she told me. “There’s not necessarily a lot of popular support for undercutting the New Deal, undercutting [Johnson’s] Great Society, and doing so in a way that has no procedural legitimacy.”  Will of the people? Hardly. Trump eked out a comeback win and kept himself out of prison—no more, no less.

For all the talk of a new class-conscious GOP, the Republican Party sounded much like its old self when, in December, Vivek Ramaswamy laid out the mission of the nascent Department of Government Efficiency (DOGE). “Medicare, Medicaid, Social Security,” Ramaswamy complained. “The dirty little secret is that many of those entitlement dollars aren’t even going to people who they were supposed to.” There it is again: “entitlement” reform. Drawing from his own presidential campaign pitch, Ramaswamy urged Donald Trump to deploy DOGE as a beachhead in a war on spending, arguing for using executive powers to slash “wasteful” federal expenditures without congressional approval. (Although Ramaswamy has since departed—reportedly rather messily—as co-lead to run for Ohio governor, President Trump officially established the temporary entity within the White House on Monday through one of his many day-one executive orders.) DOGE apes the language of a Silicon Valley slide deck, but it has so far presented little more than a memeified version of well-trodden right-wing austerity politics. Ramaswamy and Elon Musk—now DOGE’s sole leader—have pushed cuts in the corporate speak of “efficiency.” But what they offer makes little sense. Musk has talked of slashing $2 trillion. How would such a change not destroy programs Trump has promised not to kill? The billionaire does not have an answer, later backtracking his goal to consider $1 trillion to be “an epic outcome.” > “Entitelements” originally had a much different meaning. Musk has offered the same logic that undergirded past calls for cuts: Tough love is good for the poor. He agreed in an October town hall on X that Trump’s policies would deliver “temporary hardship” but “ensure long-term prosperity.” Here, he sounds much like former House Speaker Paul Ryan, whose Path to Prosperity budgets proposed scaling back Medicare and Medicaid and repealing the Affordable Care Act to offset tax cuts for the wealthy, and like former Rep. Matt Gaetz, who said in 2023 that he did not “think hard-working Americans should be paying for all the social services” of “couch potatoes.” Entitlements originally had a different meaning. When Franklin D. Roosevelt adopted Social Security in 1935, the program was pitched as “social insurance,” one that Americans “earned” and were “entitled” to. But Republicans have flipped that meaning by associating these programs with notions of dependence: lazy people asking for handouts—an “entitled” culture. This argument traces back centuries, but the core of the discourse came during the New Deal and its aftermath. In the 2019 book Free Enterprise: An American History, professor Lawrence B. Glickman recounted how Roosevelt’s critics divided the country into “productive makers” and “unproductive takers.” As opposed to the early labor movements of the 1800s, wherein “makers” were workers and “takers” were business owners, free-market proponents “turned an image of class warfare on its head.” In this view, anti–New Dealers claimed taxation as theft. “The affluent declared themselves the victims” who were forced to support welfare, Glickman wrote. The 1960s solidified anti-entitlement ideas amid a backlash to the civil rights movement, notes Vanessa Williamson, a senior fellow in governance studies at the Brookings Institution. “By 1967, most of the stories about welfare and the poor were illustrated with pictures of Black people,” she told me. This laid the groundwork for Ronald Reagan to huff in 1987 that “millions of Americans became virtual wards of the state” through government assistance. The party has continually found rhetoric to suggest poor people are to blame for each new crisis. When the Tea Party took over the GOP, a key frustration was that “taxpayers” were supporting a population of the unworthy. Mitt Romney almost rode a similar “47 percent” sentiment to the White House. This “free enterprise” mindset has assumed strange textures as venture capitalists take the vanguard of the GOP. Tech billionaire Marc Andreessen pointed to the New Deal as Roosevelt’s “personal monarchy.” We need a Caesar-like CEO in Trump, he said, to undo FDR’s grasp. Given the upper crust’s latest New Deal backlash, the left’s challenge goes far beyond lawsuits against DOGE—it is how to revert “entitlements” back to its original meaning. In Williamson’s view, mainstream liberals have failed to show how government is good. Progressives, she says, need to start promoting a different version of government “efficiency.” Namely, the adoption of policies that better the lot of regular people and protect them from the excessively rich and self-entitled DOGE boosters.