By James Goodwin, Center for Progressive Reform
The annual Duke Law Journal Administrative Law Symposium has long served as one of the most prestigious fora for cutting-edge administrative law scholarship. This year’s event, which featured the leadership and contributions of six CPR Member Scholars, was no exception. Each symposium is built around a theme, and this year’s topic was “Deregulatory Games,” which examined how the Trump administration’s aggressive and often bizarre assault on our system of regulatory safeguards has tested the long-standing doctrines, norms, and institutions of U.S. administrative law. Last week, the Duke Law Journal published a compilation of articles derived from the presentations at this year’s symposium.
It’s safe to say no aspect of the Trump administration has been normal, and that especially rings true with regulation. While undermining the regulatory system has long been a goal of conservative policymakers and their corporate interest allies, the manner in which the Trump administration has pursued this goal – chaotic, unprincipled, and lazy, to list but a few descriptors – has carried with it the unwelcome but also not un-interesting opportunity to reevaluate first principles and assumptions that underlie our system of administrative law. Each of the contributors to the Duke Administrative Law Symposium found plenty to reevaluate.
CPR Member Scholar Bill Buzbee, who was the driving force behind this year’s symposium, contributed an article on what he terms “statutory abnegation,” or the phenomenon of agencies claiming they lack a previously claimed and widely recognized authority to regulate in some area in order to justify a deregulatory action. As Buzbee explains, this phenomenon requires special attention given the unusually high prevalence of statutory abnegation claims that have been made throughout the Trump administration. Perhaps the best known example is the Environmental Protection Agency’s attempt to justify its repeal of the Obama-era Clean Power Plan to limit greenhouse gas emissions from existing fossil-fueled power plants on the basis that the rule exceeded the agency’s authority under the Clean Air Act. In his article, Buzbee systematically dismantles the legal arguments made in support of statutory abnegation claims and examines the political incentives that encourage the use of these claims despite their shaky legal foundation.
CPR Member Scholars Robert Glicksman and Emily Hammond contributed an article that looks at the Trump administration’s blatant abuses of established norms and doctrines of administrative law, which they refer to as “regulatory slop.” Glicksman and Hammond argue that so far, judicial review of the Trump administration’s disregard of procedural requirements remains sound and sufficiently robust. They contend, however, that the phenomenon of regulatory slop might require greater attention to the remedies that courts employ in such cases, and that stronger remedies are likely both appropriate and necessary for deterring abuses and promoting the rule of law.
CPR Member Scholars Tom McGarity and Wendy Wagner contributed an article taking on the issue of the Trump administration’s attack on science to support its deregulatory agenda. Specifically, they document the various strategies the Trump administration has used to manipulate science – which they refer to as “stealth” science – to support deregulatory actions. They explain how these strategies demonstrate the shortcomings in current administrative law mechanisms for ensuring the integrity of science-based regulatory decision-making. Accordingly, to restore this integrity, they argue that a comprehensive “firewall” is needed between purely scientific work that agencies perform and policy input from other agency officials.
Finally, CPR Member Scholar Sidney Shapiro‘s contribution examines the problem of agency “inaction.” Critics have long noted that a major shortcoming of administrative law doctrine is its inability to effectively deal with the problem of agencies failing to carry out their statutory missions on behalf of regulatory beneficiaries. This problem has been taken to a whole new level under the Trump administration, which Shapiro predicts is likely to be “the first presidency to go four years without promulgating new significant regulations to protect people and the environment.” Courts have largely taken a hands-off approach to claims that agencies are withholding action, with the expectation that this task is better suited to political oversight. Shapiro explains that the obvious weakness of this approach has only been underscored by the Trump administration. He argues that more aggressive judicial review of agency inaction may be warranted, though he acknowledges the large risks this approach might carry.
These CPR Member Scholars were joined by other leading administrative law scholars, who contributed articles on cost-benefit analysis and paperwork reduction. Together, their articles offer a critical new perspective on the soundness (or not) of the theory and practice of administrative law even in this unprecedented era of Trumpism. Fortunately, with time, it will be possible to repair the damage that is being done by the Trump administration to important democratic institutions, including our regulatory system. The scholarship from CPR Member Scholars will play a crucial role in these efforts, as well as in ensuring that we learn from this experience so that it might never be repeated.