This post was originally published on Legal Planet. Reprinted with permission.
Conservatives love to complain about faceless bureaucrats, but blaming bureaucrats for regulations is hopelessly out of date. When Elena Kagan was a professor, she wrote an article called “Presidential Administration.” The article applauded her former boss Bill Clinton for seizing greater control of the regulatory process, away from agencies. That trend has accelerated to the point where the White House controls even the fine details of regulation.
Two things can get sidelined in presidential administration. One is agency expertise. No one in the White House has as much knowledge as agency experts about air pollution, or climate change, or endangered species.
The other thing that gets sidelined is active implementation of the law actually passed by Congress. The White House staff who review regulations care only about costs and benefits. The president and the higher-level staff care only about the president’s policy and political agendas. From their perspective, the law actually passed by Congress only matters to the extent it might let courts get in the way of those other agendas. Only the agency itself has an affirmative institutional commitment to the statute it administers.
Kagan admitted in her article that these were possible risks but thought there were sufficient safeguards to prevent them. After four years of Trump, we know that’s wrong. Kagan was right about the benefits of possible presidential administration but wrong about the risks. We shouldn’t abandon the entire idea of presidential administration. The question is whether we can shift the balance a bit in the other direction.
One helpful reform would be to make the process of White House review more public. In principle, the initial White House review process is supposed to be transparent. In reality, not very much is disclosed. As a result, the public has no way of holding the White House responsible for its regulatory rewrites. Congress can address this by expanding protection for inspectors general and whistleblowers. It should also insist that the revisions to regulations by the “regulatory czar” be made public, as should the comments on regulations by other government agencies. The only reason for secrecy is to avoid public accountability, and that isn’t acceptable.
A second reform would be for courts to give greater scrutiny when agencies reverse their positions. The current flip-flops between administrations do no one any favors. Agency reversals should require clear explanations based on evidence and legal analysis, not just shifts in the political winds.
It might also be helpful to pick someone as White House “regulatory czar” who has some degree of respect for the work of agencies. That’s up to Biden, but it’s also a question members of Congress should pursue in confirmation hearings. Presumably, many past holders of the position actually did respect their agency counterparts, but that clearly has not been universal. Presidents should also consider selecting individuals with prior agency experience rather than outsiders to government.
Toning down the president’s public role in the regulatory process might also fit an important part of Biden’s agenda, which is to reduce political polarization. Dramatizing the president’s role in regulation makes outcomes more political. It may be better to express quiet support for an agency rather than trying to make every decision look as if it came directly from the president’s hands.
There are real reasons why presidents have taken firmer control of the executive branch, and we can’t wave a magic wand and go back 30 or 40 years. It’s not just a matter of presidential ego. Presidents (and their “czars”) can add coherence and drive to an administration. They also need to signal to their party bases and the public at large that they are taking action on their agendas. Thus, presidential administration is partly a necessity and partly a good thing. But there can be too much of a good thing, and centralized control of regulations is one of them.
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Daniel Farber | January 19, 2021
Conservatives love to complain about faceless bureaucrats, but blaming bureaucrats for regulations is hopelessly out of date. When Elena Kagan was a professor, she wrote an article called “Presidential Administration.” The article applauded her former boss Bill Clinton for seizing greater control of the regulatory process, away from agencies. That trend has accelerated to the point where the White House controls even the fine details of regulation.
Michele Janin, Robert Verchick | January 14, 2021
Over the last six months, we had the honor of leading the search for a visionary new leader to guide our organization. Our search is over, and we're thrilled to announce that Minor Sinclair will be taking CPR's helm next month.
Daniel Farber | January 13, 2021
Donald Trump's hostility domestic environmental regulation is notorious. He also stalled or backpedaled on the international front. Here are seven steps that President Biden could take to remedy the situation.
Victor Flatt | January 12, 2021
One of the most vexing environmental law issues of the last three decades is the scope of the term "waters of the United States" (WOTUS) in the Clean Water Act -- and what marshes, lakes, and streams fall under its purview. A connected legal question stretching back even further is how much deference to give agencies in policymaking and legal interpretations. These issues are present in both the Trump administration's final "Waters of the United States" rule, which narrowly defines waters subject to the act, and the Biden administration's likely attempt to expand that definition. The Trump administration's narrow approach dramatically reduces the number of waterways under federal protection. A broader definition would restore and possibly expand protections to better safeguard public and environmental health.
Alice Kaswan, Shalanda H. Baker | January 11, 2021
The Black Lives Matter movement highlights long-standing inequities and amplifies the drumbeat for climate justice and an equitable transition to a clean economy. With the incoming Biden-Harris administration and a growing list of environmental justice advocates at the helm, it's time to move from rhetoric to reality. We offer concrete proposals to turn climate justice goals into climate justice policies.
Amy Sinden, Richard Parker | January 8, 2021
T'was the season of gift-giving and on December 9, outgoing EPA Administrator Andrew Wheeler delivered a parting gift for his successor in the form of a new regulation: Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.
Darya Minovi, James Goodwin | January 7, 2021
In a last-ditch effort to further weaken the U.S. Environmental Protection Agency's (EPA) ability to protect public health, this week, the Trump administration published its final “censored science” rule. As stated in the Center for Progressive Reform’s comments on the draft rulemaking, this proposal unjustifiably limits the research that can be used in regulatory decision-making, giving more weight to studies where the underlying data is publicly available. These restrictions will apply to dose-response studies -- which measure how much an increase in pollution exposure increases public health harms -- and which often rely on medical and other private data. CPR urges the incoming Biden administration to repeal this misleading and harmful rulemaking.
James Goodwin | January 4, 2021
In my previous post, I began my review of 10 key regulatory policy stories to watch out for as 2021 gets underway. In this piece, I wrap up that list and offer some closing thoughts.
James Goodwin | January 4, 2021
Thanks to the recent presidential election results, I’m able to do something I haven’t done in a long time: look at a new year with something resembling hope and optimism. As noted in my December 21 posts, the Trump administration wreaked havoc on our system of regulatory safeguards in 2020, as it did in previous years. The incoming Biden-Harris administration brings a strong mandate to undo the damage -- and to go further by building a more just and people-centered government that can meet the pressing challenges America faces. Will they seize the moment? Here are the first five of 10 storylines I’ll be following this year. Each could significantly influence efforts to build a regulatory system that can deliver safeguards that the American public expect and deserve.