Chartbook 399: Columbia University, the Trump administration and "ad hoc governance": Iterations of the "Unstate".
On Wednesday, July 23, 2025 Columbia University announced what it called a “resolution” and “agreement” with the Trump administration.
I don’t want to get into the details of this “deal”, or the sagacity of believing that an “agreement” with the Trump administration is worth anything.
In the broader scheme of things, the disgraceful dirty washing of one private University in New York is worth thinking about less for its own importance than the for the broader issue it raises, in this case “governance by deal”.
This is brought to the fore by a typically excellent piece by my colleague David Pozen at the Balkinization legal blog. The original is here. For your convenience I reproduce the whole thing below
Regulation by Deal Comes to Higher Ed
David Pozen
Earlier this evening, Columbia University announced an agreement with the Trump administration in which Columbia makes a host of concessions in order to restore its eligibility for federal funding. The agreement is already being described as “unprecedented,” “the first of its kind.” These descriptions are true but ambiguous, because the agreement breaks new ground on any number of levels.
For instance, the agreement marks the first time that antisemitism and DEI have been invoked as the basis for a government-enforced restructuring of a private university. The agreement was engineered by a novel collaboration among the Department of Education, the Department of Health and Human Services, the General Services Administration, and the White House, which pooled their resources to ratchet up the pressure on Columbia (with some help on the side from the Department of Justice). The agreement is also the first to require a university to fork over money to the government as a condition of receiving money from the government, bringing a new brand of pay-to-play into the world of scientific and medical research.
And let’s not forget that the agreement grows out of the executive branch’s first-ever cutoff of congressionally appropriated funds to a university, so as to punish that university and impel it to adopt sweeping reforms, without any pretense of following the congressionally mandated procedures. Lawyers have been debating the exact circumstances under which the executive branch may freeze particular grants and contracts to particular schools. Yet as far as I’m aware, no lawyer outside the government has even attempted to defend the legality of the initial cutoff that brought Columbia to its knees and, thereafter, to the “negotiating” table.
In short, the agreement gives legal form to an extortion scheme—the first of its kind!—that defies the relevant statutes as well as the constitutional separation of powers and the First Amendment.
There is another unprecedented feature of the situation that is so obvious it is easy to overlook, and that might ultimately prove the most consequential of all: the way in which the federal government is seeking to reshape the internal operations of universities not through generally applicable directives, but rather through a series of bilateral “deals.” The Trump administration has made clear that while Columbia is first in line, it intends to reach comparable agreements with other schools—to scale the Columbia shakedown into a broader model of managing universities deemed too woke. As has already occurred with law firms, tariffs, and trade policy, regulation by deal is coming to higher education.
* * *
Recent years have seen fierce debates over how universities should be regulated when it comes to matters of discrimination. The traditional paradigm is that Congress passes civil rights laws; the Department of Education promulgates rules, following a process of public notice and comment, to implement these laws; and the department then seeks to ensure compliance. Under President Obama, the executive branch began to rely more on Dear Colleague Letters and other informal policy statements, and less on notice-and-comment rulemaking, to promote its vision of antidiscrimination. Many commentators on the right cried foul. By 2024, they were joined by a growing chorus on the left, including some who accused the Biden administration of utilizing “subregulatory guidance” to undermine pro-Palestinian protests.
Without any clear grounding in the civil rights statutes themselves, the Trump administration has begun to effect another, more dramatic regulatory shift—away from guidance documents addressed to the entire sector, and toward bespoke deals foisted upon individual schools after summarily terminating or threatening their federal funds. It is important to emphasize that this shift does not reflect an increased interest in enforcement, leading to an increased number of consent decrees or out-of-court settlements. These deals will not be the product of thorough investigations or judicial findings of misconduct by the schools in question. No established legal process was followed for the Columbia agreement; no genuine legal dispute was resolved. The dealmaking is the main regulatory event from start to finish.
This emerging model raises profound concerns not just for universities’ budgets and independence but also for the rule of law. By relying on “particular transactions to effectuate government policy,” scholars have observed in other contexts, regulation by deal bypasses all of the “notice, comments, [and] due process standards that we ordinarily expect from public administration.” While guidance documents may share some of these deficits, they are not actually binding on regulated parties and at least aspire to uphold bedrock legal principles of “generality, clarity, publicity, stability, and prospectivity.” The style of regulation reflected in the Columbia deal is at once far more coercive and far more arbitrary—opaque in development, unpredictable in application, deeply susceptible to personalism and corruption, and only contingently connected to the laws Congress has written. As compared to the familiar fare of public administration, “one-off dealmaking is more about back-door terms, forceful results, and unequal application of standards, to the extent standards exist at all.”
Regulation by deal may have a useful role to play under certain conditions. For example, the executive might have an urgent need to partner with particular entities, legislative authorization to do so, and good cause to believe that the unpredictability of dealmaking will reduce moral hazard or enhance legal compliance. The financial crisis of 2007–2008 arguably satisfied these conditions. Whatever one thinks about Columbia or elite universities more generally, the current campus imbroglios plainly do not.
The spread of regulation by deal would be worrisome in any period, but it is especially worrisome at this time and in this domain. Authoritarianism feeds on manufactured emergencies and hardball tactics that give the executive leverage to attack political opponents and compel obedience. Basic research, on the other hand, thrives under stable institutional frameworks, reliable funding commitments, and a climate of free inquiry. Deals like Columbia’s enhance the power of presidents and their allies within targeted universities; sideline Congress, the courts, and most faculty; and sow fear and uncertainty throughout civil society. They are fundamentally inconsistent with the logic of academic freedom.
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But what if you believe that Columbia, Harvard, and their ilk have made grievous missteps of their own and therefore welcome the changes these deals will bring? Regulation by deal, as noted above, gets forceful results. And forceful results seem to be what many of these universities’ critics crave.
I cannot hope to convince those who are determined to “dismantle” universities like Columbia and Harvard that the ends don’t justify the means here. (Nor can I offer an assessment of the precise terms of the Columbia agreement, which I have not yet had a chance to study.) All I hope to convey is that the means being used to push through these reforms are as unprincipled as they are unprecedented. Higher education policy in the United States is now being developed through ad hoc deals, a mode of regulation that is not only inimical to the ideal of the university as a site of critical thinking but also corrosive to the democratic order and to law itself.
In this newsletter I want to make two further points to continue the conversation that David has started in such a timely fashion.
#1
David speaks about “regulation by deal”. I have substituted governance for regulation in the title to this newsletter because I don’t think regulation quite captures what is going on here. Seeking to understand the Trump administration’s actions as regulation harks back too closely to a notional, prior order of orderly regulation. The Trump administration has well and truly departed from that. It is engaged in a running assault on the very idea of orderly regulation, in favor of hit-and-run, ad hoc threats and intimidation. This is a mode of government, though I am not sure you can really call it governing, which again implies too much regularity and too clear a strategic conception. So I think our best bet is the neologism “governance”.
If you look up the etymology of “governance” DeepSeek will tell you something like this:
“The term "governance" began to be widely used in the late 20th century, particularly from the 1980s and 1990s onward. Its rise in prominence was driven by several key developments:
World Bank's Influence (1989) – The term gained global traction after the World Bank used it in a 1989 report titled "Sub-Saharan Africa: From Crisis to Sustainable Growth," which highlighted "good governance" as essential for economic development. This framed governance as a key factor in international aid and policy.
New Public Management (1980s–1990s) – Western governments, especially in the UK, US, and Australia, adopted business-like reforms under New Public Management (NPM), shifting focus from traditional "government" to broader "governance," emphasizing efficiency, privatization, and decentralized decision-making.
Globalization & Multi-Level Governance (1990s) – As globalization increased, governance expanded beyond nation-states to include international organizations (UN, IMF), NGOs, and private actors, reflecting more networked and collaborative forms of rule-making.
European Union & Regional Governance – The EU's complex, multi-stakeholder model popularized governance as a way to describe decision-making beyond traditional state hierarchies.
Corporate Governance (Post-1980s Scandals) – High-profile corporate failures (e.g., Enron, 2001) pushed corporate governance into mainstream discourse, emphasizing transparency and accountability.
While the word itself dates back centuries, its modern usage—encompassing efficiency, participation, and institutional accountability—became dominant in the 1990s and remains central in political science, economics, and organizational theory today.”
This etymology, which would need proper citations, explains why many people flinch when you use the term “governance”. It is closely associated with the neoliberal project in its more capacious forms.
In talking about “ad hoc governance” with regard to the “deal” extracted by the Trump administration from Columbia, I obviously mean to refer to something more degenerate. But what I like about situating the term etymologically is a second point, which does seem crucial to make in reaction to David’s excellent post.
#2
However, we choose to label it, Trump’s “ad hoc regulation” or “governance” has a history. David himself refers to the example of 2008 as an instance where he regards
Regulation by deal may have a useful role to play under certain conditions. For example, the executive might have an urgent need to partner with particular entities, legislative authorization to do so, and good cause to believe that the unpredictability of dealmaking will reduce moral hazard or enhance legal compliance. The financial crisis of 2007–2008 arguably satisfied these conditions.
This puts it rather abstractly and ahistorically.
Another way of framing this point would be to say that modern power - both the capitalist and other kinds - have never had a straight-forward relationship with the rule of law. They may imagine otherwise and invest in arguing that “market economies” and “the rule of law” are natural bed fellows. But this is ideology. The exception, the emergency, the crisis, the ad hoc are not bugs they are features of our reality. They are both systemically produced. The international relations system produces and reproduces discretionary violence. The capitalist economy expands and grows through crisis.
And at least since the early 20th century it is clear that one mode of capitalist governance that may emerge is precisely the kind of ad hoc intervention seen in 2008.
The most spectacular form of this kind of governance is what Franz Neumann in his masterwork on the Nazi regime called the “un-state” or Behemoth.
In saying fascism is the most spectacular kind of this form of governance, I am NOT suggesting that what we are witnessing in the US today is fascism. But rather the opposite.
You are far more tempted to make the absurd Trump=fascism equation, if you start from a silly and simplistic account of “liberal reality”. If instead, we start from the position that modern power - both the capitalist and other kinds - have never had a straight-forward relationship with the rule of law, that idealized models of “regulation” are just that, idealized, that the line between regulation, government and goverance is always blurred, which is why the terms are blurry, then at any given moment the real question is how this awkwardness is being managed. What are the tools? What are the “discourses” and justifications? What passes for a deal and what does not?
In this regard, 2008 was indeed a historically significant moment of exceptional governance. To call the “deals” done at that moment merely “useful” rather understates their significance. In political terms, it was clearly a moment of unhinging. But again, by fixating on the exception we should not delude ourselves about the norm.
The Trump administration’s governance by bullying is clearly a departure in style, tone and ferocity. But at the same time, it is very much part of a piece with the increasingly crude style of “lawfare” and ad hoc deal-making that characterizes much of American corporate, business and public life today. This extends from the high-stakes divorce to “creditor on creditor” violence and the myriad out of court settlements, which is where so many disputes are “settled”. Isn’t this what high stakes lawyering in the United States today very often consists of? Does the invocation of “law” in the US today not come with a connotation of menace, threat, extortion, ruinous and arbitrary fees, obscure deal-making, hidden clauses, life-ruining nuisance suits, and bizarre somersaults from the freedom of speech to accusations of terrorism.
Isn’t this routine of civil lawfare simply the model that we are seeing the Trump administration transpose to the White House and from there to the law firms themselves and now extend to the previously more polite domains of the administrative state?
Is this good for America? Presumably not. Is it good for efficiency? Not unless you are willing to take legal fees as bona fide contributions to GDP. Does it spell the end of civilization, or long-term decline? Perhaps. Who knows about the end of civilization. What is clearly at stake is America’s narcissistic image of itself. But one thing we know for sure is that this “barbaric”, degenerate, ad hoc non-system, this “unstate” isn’t some distant future prospect that threatens “if the Democrats don’t get back in”, or the “the Republic” succumbs to a Trump third term. It is already our existing reality. This is how modern America functions, here and now.
It may come as a shock, but we don’t actually know any different - not unless you truly retreat to an ivory tower. This mess is what produces and reproduces American power as we know it, not some idealized system from which we occasionally deviate to address exceptions. This “unstate”, in all its arbitrariness, and power play and shapelessness is actually existing liberal, Western, “American” modernity.
And btw the degeneracy is not peculiar to America. Not even that. No exceptionalism here.
Europe has its lawfare and its grotesque hypocrisy and its wounded liberal narcissist too. Just talk to the migrants or the Greek victims of the Eurozone crisis or pro Palestinian protestors in Germany.
In each case this “unstate” takes a particular coloration, depending on the particular logic and history of the “rule of law” regime that you are in and the tribal culture of its legal barbarians. But the relationship between power and law is a general feature of modernity, not some national peculiarity.
My colleague Seyla Benhabib once spoke of “democratic iterations”. What we should also be thinking of are “iterations of the unstate”.
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I like where Pozen is coming from, but I have a different take, which has to do with a broader conception of clientelism. I just published a paper on this, but the reviewers in their wisdom (and they're probably right) pressed me to remove the more speculative parts. But I still think them.
I think clientelism is, in all probability, primordial, a universal building block of human society. This is likely to be true if status inequality is near-universal. What this means in practice is that those who wield the instruments of power and authority *conditionally* -- on the basis of their followership -- negotiate with those beneath them for the exchange of loyalty for material benefits. Warlords operate this way, and they gave birth, over long prehistorical time, to governments.
Kings under the ancient "rules" of domination cut deals with their underlings, one by one, making promises or issuing grants in return for allegiance. That was damn near universal. What makes the Magna Carta such a powerful moment in history is that the top tier of underlings got together and compelled King John to deal with them collectively on a somewhat rules-based basis. Rule by deal was to give way to rule by custom/treaty/etc.
Trump's governance by deal is a modern attempt (not the only one) to reverse this history and break the collective counter-power of the governed. It expands authority not so much by universal decree as case-by-case, based on the leverage it can exert on its individual subjects. That, for instance, is why immigration is so critical to the larger strategy, and why expanding ICE's budget is pivotal. Immigrants have the least power to resist, so of course they will be forced to make the hardest bargains. But one by one, all of us will have to face that sizing up moment, our resources vs theirs, so long as this trajectory continues. We are spiraling back to the mean old clientelism of our ancestors.
Whatever you call this phenomenon, fake allegations of ‘antisemitism’ are always at the sharp end. Across the west, civil and political rights are being steadily destroyed to protect a psychotic, genocidal ethnostate from public opposition and criticism. What’s truly alarming is the way that so-called ‘liberal’ institutions have folded under the slightest pressure.