Blog

Recently, the Center for Progressive Reform (CPR) launched its Beyond 12866 initiative, which seeks to promote progressive regulatory reform as a key component of the progressive movement’s efforts to build a more socially just and equitable America. To accomplish this goal, though, we must come to grips with how the regulatory system is perpetuating racial injustice and reinforcing race-based inequities. In a new web article, I take this first step by sketching out some of the ways in which cost-benefit analysis has contributed to structural racism in the broader regulatory system.

In a previous post, I discussed the essentially undemocratic ways that conservatives have come to the brink of a 6-3 majority on the Supreme Court and examined one significant implication for regulatory policy: the likely effect on the Court's view on Chevron deference. In this second post, I explore several other ways the Court could undermine the essential democratic character of the regulatory system.

Last week, Matthew Yglesias published an important piece at Vox explaining the many ways conservatives have succeeded in exploiting fundamentally undemocratic features of our constitutional structure of government to advance their policy agenda. This strategy will have reached its grotesque culmination if they manage to seat Judge Amy Coney Barrett on the U.S. Supreme Court. He’s rightfully angry about the situation -- as should we all be -- but the story he tells, thorough and infuriating as it is, misses an important point: It could actually get much worse.

An underappreciated side effect of the modern conservative movement now epitomized by Trumpism is its dogged pursuit of any legal argument to support “the cause,” no matter how ridiculous or specious. Long-settled questions like nondelegation and the constitutionality of independent regulatory agencies are suddenly, if bizarrely, up for grabs again. Add to this list a new line of argument – now germinating like a mushroom spore in horse manure – that posits that citizen suit provisions, such as those included in the Clean Air Act and Clean Water Act, are unconstitutional infringements upon the so-called unitary executive.

This week, CPR is launching its Beyond 12866 initiative, an online platform focused on promoting a progressive vision for rebuilding the U.S. regulatory system. Such a regulatory system will be essential not only to achieving the progressive vision of a more just and equitable society; it will also do the heavy practical lifting needed for implementing key elements of a progressive policy agenda, such as the Green New Deal, Medicare for All, and Black Lives Matter movement.

The Congressional Review Act (CRA) is a bad law and should be repealed. Yet, it has taken on outsized importance given that it provides one of the few vehicles for moving substantive legislation through a hyper-polarized Congress. The upcoming elections are thrusting it back in the spotlight, so let’s talk about the CRA and how opponents of the Trump administration’s assault on public safeguards might put it to its highest and best use.

Yesterday, I joined a group of CPR Member Scholars and staff in submitting comments on the Environmental Protection Agency's (EPA) "benefits-busting" proposal, which would drastically overhaul how the agency performs cost-benefit analysis on its biggest Clean Air Act rules. As we explain in our comments, the action is a thinly veiled effort to rig the results of those analyses – more so than they already are – to make it harder to issue appropriately strong safeguards, thereby sabotaging the effective and timely implementation of the Clean Air Act.

Today, a group of 136 law professors from across the United States, including 31 Center for Progressive Reform (CPR) Member Scholars, will send a letter to congressional leaders urging them to “ensure that our courthouse doors remain open to all Americans for injuries they suffer from negligence during the COVID-19 pandemic.” The letter, spearheaded by CPR Member Scholars Dan Farber and Michael Duff, comes in response to a push by the U.S. Chamber of Commerce and other corporate special interests to include a “federal liability shield” in the next COVID relief bill, which is now being negotiated in Congress. This shield would prevent ordinary Americans from holding corporations accountable in the civil courts when their unreasonably dangerous actions cause people to become sick with the virus.

Donald Trump is no stranger to leaving things worse off than he found them, and this is precisely what his administration now aims to do with the Environmental Protection Agency (EPA), not just one of the most successful government institutions in the history of the United States, but indeed the world. Having worked quickly, if not sloppily, to dismantle every vestige of the Obama administration's efforts to promote cleaner air and water, the Trump EPA is now heading down a path of self-destruction. The agency's proposed "benefits-busting" rule, released early last month, is a big part of this campaign.