Friction, the force that resists motion, is as evident on Capitol Hill as it is in high school physics labs. In government, “friction” is often seen as a problematic obstacle plaguing the public sector. Indeed, a common gripe about our federal system is the prevalence of gridlock when it comes to passing laws and taking action.
With respect to foreign policy, though, friction can sometimes play a vital role by preventing decisionmakers from going overboard, according to at least one scholar. In “frictionless government,” the absence of genuine opposition has historically produced some of the most misguided and excessive policies in U.S. history.
In a recent article, Harvard Law School Samuel Williston Visiting Professor of Law Kristen Eichensehr and University of Virginia Law Professor Ashley Deeks unpack the phenomenon of frictionless government. According to the co-authors, the ongoing absence of friction in present day U.S. foreign policy has the potential to trigger unintended consequences. One current example of note, they believe, is the nation’s response to the economic and military rise of China, which has led leaders from both parties to support tariffs, tech transfer bans, and the possible disappearance of TikTok from Americans’ phones.
Eichensehr spoke with Harvard Law Today to explain the meaning of frictionless government, how it comes to be, why it can be a problem, and how it can be brought to an end.
What is “frictionless government” and what are some of the characteristics associated with it?
Kristen Eichensehr: My co-author Ashley Deeks and I define “frictionless government” as circumstances where overwhelming agreement exists across multiple parts of government in a way that causes the normal checks and balances in U.S. policymaking to break down. It happens when there is overwhelming consensus between Congress and the president, between the two houses of Congress, between Congress and executive agencies, and even bipartisan agreement between Democrats and Republicans. The term “frictionless” refers to the disappearance of the usual pushback that comes from partisan divides, separation of powers, and other sources of policymaking tensions throughout our system.
My coauthor and I found that frictionlessness is most likely to occur when the United States is either attacked or otherwise faces some external adversary. When a threat to the country unites groups that would otherwise push back on one another, these circumstances tend to pave the way for frictionless decision-making. Internal divisions, in many cases, are a drag on U.S. policymaking; however, they also have a productive side. When those divisions disappear, that productive, necessary friction goes away, and the policy decisions that follow naturally have a tendency to overreact and overreach.
HLT: What are some of the common problems that are associated with frictionless government?
Eichensehr: We see three main categories of risks with frictionless government. One is that countries fall into an escalatory spiral. Policies adopted during periods of frictionlessness can trigger a chain reaction that spirals out of control, either sparking or escalating conflict. The second category of risks occur when foreign governments react to these policies in ways that are ultimately counterproductive to what the frictionless government was originally trying to achieve. A final type of harm that commonly arises with frictionless government in foreign policy is the unlawful targeting of people who are perceived as linked to apparent adversaries. The starkest example of this is Japanese interment domestically during World War II, which the Supreme Court eventually repudiated, and is widely regarded as a huge, shameful mistake.
“Internal divisions, in many cases, are a drag on U.S. policymaking; however, they also have a productive side. When those divisions disappear, that productive, necessary friction goes away, and the policy decisions that follow naturally have a tendency to overreact and overreach.”
HLT: It is easy to see how a lack of intergovernmental friction might lead to disproportionate policy responses, but can it also produce good policy?
Eichensehr: Yes, that’s possible. We do not argue that frictionless government automatically produces bad policy, but it does significantly increase the risk of bad policy. We have plenty of historic examples of frictionlessness leading to regrettable outcomes where policies are only repudiated after a whole lot of harm has already occurred. That is why, although frictionless government does not always lead to bad outcomes, its existence is cause for concern. When the U.S. has actually been attacked and there is a real, ongoing threat to national security, our leaders need to find consensus and react. The concern is making sure that there’s not a policy overreaction or policies adopted in the heat of the moment, out of fear, that ultimately produce counterproductive outcomes. Finding the right balance is what we’re really trying to do in our paper, and what a lot of the prescriptions we identify are intended to do; that is, how do we reintroduce friction in ways that improve policymaking without disabling policymaking altogether?
HLT: What are some recent or ongoing examples where we see frictionless government in U.S. foreign policy decision-making?
Eichensehr: The recent case studies that we discuss are U.S. foreign policy in response to Russia’s full-scale invasion of Ukraine and ongoing U.S. policy on China. With respect to China, real security threats exist, but it’s a challenge to correctly calibrate and make sure that the policies the U.S. adopts to address threats are not going to be counterproductive in the long run. The reaction to Russia’s full-scale invasion of Ukraine in 2022 was actually a positive example where frictionlessness did not go off the rails in the way that we’ve seen in other cases. For several months after Russia’s full-scale invasion in February 2022, we saw overwhelming votes by Congress in favor of actions both to punish Russia and to support Ukraine. We saw sanctions on Russian leaders and entities and restrictions on certain kinds of trade with Russia, as well as overwhelming votes to provide arms and various other kinds of support to Ukraine. These policy decisions had broad support from Democrats and Republicans alike in the House and Senate. However, the kind of harms we expect to accompany frictionlessness did not result; that is, the impacts of both the situation itself and the U.S. response to the situation remained mostly confined. We did not see escalating conflict where U.S. adversaries took actions counterproductive to U.S. security goals. We did not see unlawful targeting of people in the U.S. linked to those foreign adversaries.
HLT: In your opinion, what prevented the frictionlessness conditions from spiraling in the context of the conflict between Russia and Ukraine?
Eichensehr: One major factor with Russia and Ukraine was that the frictionlessness came to an end relatively quickly. For several months, there was overwhelming congressional support for assisting Ukraine and punishing Russia. Congress codified a ban on importing Russian oil, but the United States wasn’t doing much of that anyway. As a result, the process of decoupling from the Russian economy was largely symbolic for the U.S. and not very difficult or painful. But votes on aid to Ukraine became caught up in partisan disagreements within a few months, and so friction returned. The Russian case is an interesting one from our perspective too because in the early months after the invasion, to the extent that there was friction, it came from the executive branch resisting Congress on, for example, providing certain types of weapons to Ukraine that the executive thought might provoke an escalation by Russia.
HLT: What other circumstances can bring an end to frictionless government decision-making?
Eichensehr: Another common way that frictionlessness can end is when the costs of a policy become evident. When policies backfire in unanticipated ways and negative consequences become apparent, friction is imminent. Even though this is often very effective in reintroducing friction, it can take a very long time to come to light. Unfortunately, the negatives of a particular policy adopted in frictionless circumstances often do not become obvious to decisionmakers until significant harm has occurred.
HLT: What elements of frictionlessness do you see in ongoing U.S. foreign policy decisions directed at China? Do you have any concerns about the negative consequences of these policies?
Eichensehr: There are a lot of elements of frictionlessness with respect to the U.S. government’s relationship with China. Congress’s bipartisan agreement on Chinese technology risks has materialized into a cascade of government actions on the issue. We have seen Congress target particular Chinese companies like Huawei and TikTok. We have seen export controls on semiconductors, as well as efforts to restrict imports of cars that incorporate Chinese software. The executive branch has pursued many policies to counter China on its own, but members of Congress have nevertheless pushed the executive branch to do more and move faster.
This is an especially interesting example of frictionlessness because the U.S. is not in a hot war with China. Although this situation has not been triggered by any external attack, both parties have reached a consensus that China is the United States’s biggest external challenge. As a result, members of Congress from both parties, from both chambers, want to be seen as “China Hawks”. This is not to say that the security concerns are invalid. Valid national security concerns and frictionlessness can coexist simultaneously. But it is very difficult for the public to evaluate the government’s claims because so much of the evidence on which they base their assessments and policy choices is classified.
HLT: Do you have any concerns about the negative consequences of these policies?
Eichensehr: Some of the biggest risks center on the possibility of unintended consequences. For example, the U.S. is imposing relatively strict export controls on selling advanced semiconductors to Chinese companies in an effort to stymie China’s development of AI. China has responded by doubling down on indigenizing that technology. So, as a direct result of U.S. restrictions, China has undertaken the goal of developing its own domestic semiconductor industry, independent of U.S.-controlled chips. Export controls may keep the U.S. ahead of China in AI development for a while, and maybe even for a crucial period, but they are also spurring the development of a semiconductor industry in China that will compete with the United States in the longer term.
There are other risks for the United States and for U.S. companies too. China has also reacted to the U.S. chip export controls by adopting its own export controls on rare earths, which are components needed for manufacturing solar panels and batteries, among other things. At some point, the frictionless moment with respect to China will end, but we’re nowhere near that point now and may only be able to fully assess in retrospect whether U.S. policies achieved their goals.
“At some point, the frictionless moment with respect to China will end, but we’re nowhere near that point now and may only be able to fully assess in retrospect whether U.S. policies achieved their goals.”
HLT: It seems like partisan divide can be a source of good friction, but it can also be extremely unproductive from a policymaking standpoint. What other sources of good friction are potentially at play?
Eichensehr: We normally think of checks and balances coming from entities within the federal government, but Professor Deeks and I have written about unconventional checks as well. In the Frictionless Government article, we discuss how checks can come from states, localities, foreign allies, and even companies. Depending on the circumstances, these external actors can be in the best position to reintroduce friction to the process. Private sector entities are often extremely well resourced, relatively sophisticated, and have the ear of decision makers. As regulated parties, they also often have standing to challenge policies through litigation. That’s somewhat unusual. Often with U.S. national security and foreign policy issues, courts will say that parties attempting to challenge the policies lack standing; that is, they don’t have or can’t prove that they have an injury sufficient to satisfy standing requirements. But companies as regulated parties do have the right kind of interest and injury. Companies are sitting at this node between the United States and China with interests in protecting their market share and their ability to sell across borders, so they have incentives to challenge U.S. policies in some cases. They’re not your ideal check in a constitutional sense, but even imperfect checks can be useful sources of friction.
HLT: What about the judiciary and the role that they play? Do you see courts serving as a substantive check on frictionless government?
Eichensehr: The judiciary tends to find ways not to decide cases on national security and foreign policy issues. Courts, at least historically, have tended to be very deferential to the executive branch. What we haven’t seen the judiciary do a lot of is directly confront the executive branch and question the existence of a claimed national security risk. When the executive comes into court and says there’s a national security problem, it’s extremely difficult for judges to say, “No, we think you’re wrong.” We do occasionally see the judiciary make a proceduralized ruling that has a substantive implication, where government action is held unlawful because of defective process. The existence of even that kind of judicial review can make the executive branch more careful in its policymaking processes and, in that sense, the judiciary can help to reintroduce friction even if judges ultimately rule for the government. The judiciary has the potential to play a bigger role going forward as the government increasingly relies on economic tools of national security that companies are in a position to challenge.
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