Buzbee in NYT: Census Case Tests SCOTUS Majority's Commitment to Political Neutrality

by Matthew Freeman | April 23, 2019

CPR Member Scholar Bill Buzbee has an op-ed in The New York Times this morning in which he observes that the Supreme Court’s conservative majority faces a true rubber-meets-the-road test as it considers the Trump administration’s determination to add a citizenship question to the 2020 census, despite multiple procedural and substantive problems with the plan.

The administration’s thinly veiled objective with the additional question is to discourage participation in the census by non-citizens, who might understandably fear that revealing their status on an official government questionnaire could result in deportation. Since the Constitution makes clear that the purpose of the census is to count the total population, not just citizens, such questions haven’t been included since 1960.

But Commerce Secretary Wilbur Ross apparently regards that problem as a feature, not a bug, no doubt with the approval of the president. So, in March 2018, he announced that a citizenship question would be included in the short-form census questionnaire that goes to most households. As Buzbee points out:

Secretary Ross’s action violated three mandates from Congress. First, the government must use alternative data sources before adding questions to a census questionnaire to acquire the information. Second, Congress required Mr. Ross to review any changes with Congress three years before the census. He failed to meet that deadline. Third, agency officials cannot act arbitrarily and without a factual basis, as Mr. Ross did.

Various members of the conservative majority on the ...

OMB Leveraging the CRA to Add to Its Oversight of Independent Regulatory Agencies

by Bill Funk | April 16, 2019
Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies – specifically designed by Congress to be less prone to political interference than executive agencies – into a far more centralized CRA review process. The CRA requires federal agencies to send newly adopted rules to the House and Senate before the ...

What Else Should Congress Investigate?

by Daniel Farber | April 12, 2019
Originally published on Legal Planet. Every day, it seems that there is a headline about some investigation involving campaign finance violations, the White House, or the actions of some foreign power. Perhaps that's all the bandwidth that Congress has. But there are other areas calling out for inquiry. Here are just a few: CAFE Standards. The car industry asked for delays and modifications in fuel efficiency standards. The administration came back with a drastic rollback that went far beyond what ...

Oversight, Executive Orders, and the Rule of Law

by David Driesen | March 14, 2019
This post is based on a recent article published in the University of Missouri—Kansas City Law Review. Congressional oversight and the public's impeachment discussion tend to focus on deep dark secrets: Did President Trump conspire with the Russians? Did he cheat on his taxes? Did he commit other crimes before becoming president? The House Committee on Oversight and Reform (or the Judiciary Committee), however, should also focus on a more fundamental and less hidden problem: Trump has systematically sought to ...

Can the House Save Science from the Trump Purge?

by Laurie Ristino | March 12, 2019
The Democratic majority in the U.S. House of Representatives has a weighty agenda – from policy reform to oversight of the Trump administration. Given all that the House Democrats have on their plate, urging them to restore policy rationality by making the support of science-based policy central to their strategy might seem like a prosaic ask, but it's critically important.   Without science as the lodestar for government policymaking, anything goes, which is exactly the problem. As the Union of ...

The Missing Ingredient in the Green New Deal

by James Goodwin | March 07, 2019
To this point, much of the focus in the discussion over the Green New Deal has been on the substance of the vision it lays out for a better society – and why shouldn't it be? There's some really exciting stuff included in the Green New Deal's toplines, which are by now well-rehearsed: a full-scale mobilization plan put in place over the next 10 years to get the United States to net zero carbon emissions; major government investments in clean ...

Resolution of Disapproval: Call for Repealing the CRA Featured in 'The Environmental Forum'

by James Goodwin | February 28, 2019
The return of divided government promises to bring with it a welcome, albeit temporary, reprieve from the unprecedented abuse of the Congressional Review Act (CRA) that we witnessed during the 115th Congress. As I argue in an article featured in the March/April edition of The Environmental Forum, published by the Environmental Law Institute, the CRA has become far too dangerous a law – and the happenstance of divided government should not be the only thing protecting the public interest from ...

Trump's 'Emergency' and the Constitution

by David Driesen | February 20, 2019
Originally published in The Regulatory Review. Reprinted with permission. President Donald J. Trump has declared a national emergency to justify building a wall on the U.S. southern border, which Congress refused to fund. But Mexicans and Central Americans coming to our country in search of a better life does not constitute an emergency. Immigration at the southern border is neither new, sudden, nor especially dangerous. The number of immigrants has been declining for years and crime rates among immigrants are lower ...

Rao's Record as Regulatory Czar Raises Red Flags

by James Goodwin | February 04, 2019
Tomorrow morning, Neomi Rao, the current administrator of the White House Office of Information and Regulatory Affairs (OIRA), is set to appear before the Senate Judiciary Committee for a hearing on her nomination to the U.S. Court of Appeals for the D.C. Circuit. If confirmed, she would fill the open seat once occupied by Supreme Court Justice Brett Kavanaugh. Administrator Rao's nomination has prompted intense media and public scrutiny of her background, and appropriately so, given the high stakes involved. ...

Regulatory Review in Anti-Regulatory Times: Congress

by Daniel Farber | January 17, 2019
Originally published on Legal Planet. In theory, cost-benefit analysis should be just as relevant when the government is deregulating as when it is imposing new regulations. But things don't seem to work that way. This is the second of two blog posts analyzing how costs and benefits figured in decisions during the past two years of unified GOP control of the federal government (read the first post here). Today, I focus on Congress. For the first time in history, Congress ...

The Thin Gray Line

by Daniel Farber | January 08, 2019
Originally published on Legal Planet. "Bureaucrat" is just another name for public servant. It has been said that a thin blue line of police protects us from the worst elements of society. But it is a thin gray line of underpaid, overworked, anonymous bureaucrats who protect society against more insidious risks – risks ranging from nuclear contamination to climate change to unsafe food. Due to Trump's government shutdown, many of these people are currently not being paid. Yet without the professionals ...

By Fixing Congress, the Planned H.R. 1 Could Strengthen Public Protections, Too

by James Goodwin | December 13, 2018
Not long after their party regained control of the lower chamber in the midterm elections, House Democratic leaders unveiled their signature legislative action for the next Congress – a package of reform measures aimed at tackling some of the worst ethics abuses involving the Trump administration's top officials and members of Congress. Symbolically assigned the designation of H.R. 1 to underscore its status as the top legislative priority, the bill would do more than just restore the integrity of our ...

Legal Scholars File Brief Supporting National Monuments Case against Trump

by Sarah Krakoff | November 26, 2018
In 2017, President Trump signed a proclamation reducing by about 85 percent the size of Utah’s Bears Ears National Monument, a large landscape of pristine red rock canyons and culturally and historically significant Native American sites. He claimed that he had the authority to shrink this and any other national monument under the Antiquities Act of 1906 and had previously ordered the Department of the Interior to review additional monuments whose designations stretch back decades. But does federal law really ...

Farm Bill 2018 -- Where Are We Going Post-Midterms?

by Laurie Ristino | November 16, 2018
The midterm elections are over, and most of the races have been decided. The outcome will have consequences for a wide variety of policies and legislation, including the 2018 Farm Bill. So what's the status of the bill? What are its prospects for passage during what remains of the 115th Congress? And how will the current and near-future political landscape impact the legislation's conservation provisions? To answer these questions and more, I moderated a recent Center for Progressive Reform webinar ...

Environmental Justice and Environmental Sustainability: Beyond Environment and Beyond Law

by Sarah Krakoff | November 14, 2018
This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog. Since the dawn of the environmental justice movement, we have heard the stories of individuals and communities left unprotected by our environmental laws and policies. Their stories reveal the deep-seated structures of racism and inequality that determine what resources and which people environmental law will protect. Despite risks to the cultural ...

Warren's Bill Presents Progressive Vision for Rulemaking Reform

by James Goodwin | November 08, 2018
Originally published in The Regulatory Review. Reprinted with permission. By even cost-benefit analysis — the most biased metric — regulations are improving America, producing benefits that exceed costs by a ratio of as much as 12-to-1, according to the most recent figures from the Trump Administration. Of course, those numbers barely scratch the surface of what regulations actually "do." Thanks in part to the Clean Air Act, for example, the median concentration of lead in the blood of children between one ...

For Parents of Rape Survivors, OIRA's 'Open Door' to Nowhere

by James Goodwin | November 06, 2018
The meeting logs for the White House Office of Information and Regulatory Affairs (OIRA) – the small but powerful bureau that oversees federal rulemaking efforts on behalf of the president – have looked a little different in recent weeks. As usual, they are graced by high-priced corporate lobbyists and attorneys from white-shoe law firms, along with a smattering of activists from public interest organizations. But also signing in have been nearly a dozen ordinary Americans, representing only themselves, and they've ...

The Hill Op-Ed: As Hurricanes Expose Inequalities, Civil Courts May Be 'Great Equalizer'

by Martha T. McCluskey | October 18, 2018
This op-ed originally ran in The Hill.  While hurricanes like Florence are technically “natural” disasters, the Carolinas are experiencing the ways that the distinctly human-made problems of social and economic inequality reinforce and aggravate storm damage. Exhibit A is the catastrophic breaches and spills from the enormous manure “lagoons” located on North Carolina’s many factory-scale hog farms. In the industry, these farms are known as Concentrated Animal Feeding Operations, or CAFOs, but nobody with a nose passing within a few miles ...

Good Government

For democratic government to function properly, the people need to know what their government is doing in their name. That demands both transparency and honesty from government officials and agencies. In recent years, however, some in government have worked to shield their work from public inspection, and not just where national security is concerned.

Aging Dams, Forgotten Perils

Farber | Oct 11, 2019 | Good Government

The World Bank Considers Stepping Back from Accountability

Hunter | Sep 19, 2019 | Good Government

Oversight, Executive Orders, and the Rule of Law

Driesen | Mar 14, 2019 | Good Government

The Center for Progressive Reform

2021 L St NW, #101-330
Washington, DC. 20036
info@progressivereform.org
202.747.0698

© Center for Progressive Reform, 2015