In an earlier post, CPR Member Scholar Robert Glicksman discussed the need for the next president to champion a truly positive vision of government and regulation. A new way of thinking and talking about these issues is critically important, and the president should play a key role in charting this course.
While a rhetorical shift is important and long overdue, it is also crucial that the next president be prepared to match actions to words. Consequently, the next president should also commit to building a 21st century regulatory system, one that makes good on the promise of a positive vision of government by working to protect our health, safety, environment, and financial security. Continued political gridlock in Congress – if that's what the November election yields – will likely defeat timely and effective legislative responses to public threats of harm. Instead, if any such protections are to come, the next president will have to achieve them through the regulatory system using existing statutory authority.
Such executive action to safeguard the public is an important example of democracy in action, and not, as corporate lobbyists and their conservative allies in Congress would argue, a betrayal of our constitutional system of government. To the contrary, Article II charges the president with the solemn responsibility of "taking care that the Laws be faithfully executed," and regulations are but one concrete manifestation of the discharge of this responsibility. After all, every regulation shares the same starting point – a provision in a duly enacted law. Without the regulatory system, those provisions would simply remain words on paper.
In its current form, the regulatory system is not working as well as it should be. Rather, it has increasingly become rigged to advance the narrow interests of powerful corporations instead of the broader public interest. For example, trade associations and other industry-funded groups dominate nearly every step of the rulemaking process from beginning to end. As a result, many important safeguards end up delayed, diluted, or completely blocked.
Because of this hobbled rulemaking process, agencies like the Environmental Protection Agency and the Food and Drug Administration are unable to carry out the statutory missions that Congress set out for them in landmark laws such as the Clean Air Act and the Federal Food, Drug, and Cosmetic Act. By avoiding the costs of complying with protective safeguards, corporate interests are able to continue profiting off their polluting activities or dangerous products. The general public is not so lucky, however. They continue to bear the costs of hobbled government in terms of premature deaths, costly hospital visits, and missed work and school days.
To build a successful 21st century regulatory system, at least 12 essential features must be incorporated into its design so that it is better able to protect people and the environment. To that end, the next president should:
Unfortunately, the development of some of these features – such as improved budgetary resources – will require some legislative action. As such, they may not come to full fruition until a later administration. For others, the next president can reasonably make a great deal of progress during just the first 100 days of the administration. For example, the next president can issue an early executive order that would require greater transparency throughout the rulemaking process. The important thing is that the next president begins to lay the groundwork for succeeding presidents to build upon.
In the coming weeks, the Center for Progressive Reform will expand upon these themes in a new paper, so watch this space and the CPR website for updates.
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James Goodwin | July 14, 2016
In an earlier post, CPR Member Scholar Robert Glicksman discussed the need for the next president to champion a truly positive vision of government and regulation. A new way of thinking and talking about these issues is critically important, and the president should play a key role in charting this course. While a rhetorical shift […]
Hannah Wiseman | July 13, 2016
When Congress extensively amended the Clean Air Act in 1970 to form the air pollution laws that we know today, it spoke in no uncertain terms about the breadth of federal authority in this area while also centrally involving states in the effort to clean up the nation’s air. Congress directed the EPA Administrator to […]
Sidney A. Shapiro | July 7, 2016
Originally published on RegBlog by CPR Member Scholar Sidney Shapiro. Although it is well known that regulatory capture can subvert the public interest, it is becoming increasingly clear that there are two forms of capture that can affect the performance of regulatory agencies. The “old capture”—which is what most of us think of when we think of […]
James Goodwin | July 6, 2016
This afternoon, the House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial, and Antitrust Law will hold an oversight hearing that looks at the Office of Information and Regulatory Affairs (OIRA), the powerful White House bureau that sits at the center of the regulatory universe. Originally created to oversee federal agencies’ implementation of the Paperwork Reduction […]
Evan Isaacson | July 5, 2016
For decades, politicians, advocates, and the press have lamented America's aging, deteriorating, or even failing infrastructure and called for change – usually to little avail. Perhaps another strategy should be to celebrate success wherever we see it and spotlight achievements to demonstrate that we can change the situation if we choose key public investments over […]
Brian Gumm | June 30, 2016
NEWS RELEASE: New Report: When OSHA Gives Discounts on Danger, Workers Are Put at Risk As Agency Prepares to Increase Maximum Penalty Levels for Workplace Health and Safety Violations, It Should Reexamine Settlement Policy Workplace health and safety standards exist for a reason. When companies ignore them, they put their workers in significant danger. Every year, […]
Robert L. Glicksman | June 28, 2016
The most important lessons can be the hardest to learn. Sometimes they even take a crisis. We can hope that the sorry saga of Flint, Michigan’s lead-poisoned water will be such a teachable moment for at least some of the anti-government crowd, finally driving home the point that government has a vital role in protecting […]
Hannah Wiseman | June 22, 2016
In a merits opinion issued on June 21, 2016, the U.S. District Court for the District of Wyoming (Judge Skavdahl) held that the U.S. Bureau of Land Management–the agency tasked with protecting and preserving federal lands for multiple uses by the public–lacks the authority to regulate hydraulic fracturing (“fracking”) on federally-owned and managed lands. Using a Chevron step 1 […]
Daniel Farber | June 21, 2016
One of the recurring questions in standing law is the extent to which Congress can change the application of the standing doctrine. A recent Supreme Court opinion in a non-environmental case sheds some light – not a lot, but some – on this recurring question. The Court has made it clear that there is a […]