Federal regulations have produced some of our country’s key gains in health and safety, opportunity, and social equality. They provide the working gears of our civil rights legislation. Agencies’ ability to respond to current conditions and issue evidence-based regulations is fundamental to their ability to serve the public interest. The procedural protections built into the federal civil service and the Administrative Procedure Act have their roots in the New Deal, the Great Society, and the Civil Rights Movement.
The Biden administration is now seeking to build on this legacy by embedding racial equity across all federal agencies.
Executive Order on Advancing Racial Equity
- Executive Order on Advancing Racial Equity (January 2021)
- Comment Letters in Response to the Office of Management and Budget’s Request for Information on Implementing the Executive Order:
TRUMP ADMINISTRATION’S ATTACKS ON THE ADMINISTRATIVE STATE
- From the beginning, with its mantra of the “deep state,” the Trump administration recognized the power of the administrative state to advance social justice, consumer protection, and environmental protection – and took unprecedented steps to dismantle and weaken federal executive agencies and the Administrative Procedure Act.
Resources
- Gillian Metzger, The Administrative Procedure Act: An Introduction (2017)
- Preparing for Agency Action under Trump: An APA Primer [PDF]
Administrative law as a tool for executive agency restraint.
Advocacy
- Court papers in Open Communities Alliance et al v. Carson
- Exec. Order 13777 Fair Housing Comments
Executive Order 13777 (Enforcing the Regulatory Reform Agenda, Feb. 24, 2017) directs each federal agencies to form a “Regulatory Reform Task Force” and identify regulations to modify or rescind. In response to HUD’s Federal Register notice, PRRAC and partner organizations submitted comment letters opposing the repeal of civil rights rules (June 14, 2017).links:
Commentary
- Megan Haberle, Stacking the Deck: The Regulatory Accountability Act’s Threat to Civil Rights (American Prospect, August 24, 2017)
- “How Attacks on the Administrative State Can Be Attacks on the Most Vulnerable” by Megan Haberle, in Spotlight on Poverty (March 2017)
Tracking Activity by the Administration
“Regulatory Reform” Executive Orders
- E.O. 13771 (“Reducing Regulation and Controlling Regulatory Costs,” January 30, 2017) directs agencies to offset new regulatory activity with deregulatory offsets and zero-cost caps. For example, it requires repeal of two existing regulations for each one passed; requires that the combined incremental cost of new regulation is zero; and requires that costs savings for new rules must come from cost reductions associated with at least two existing rules. While the E.O. includes language about compliance with the APA and other law, it creates clear conflicts with agencies’ statutory missions. This E.O. is currently the subject of a lawsuit brought by Public Citizen, NRDC, and Communications Workers of America with Earthjustice.
- OIRA Memorandum: Implementing Executive Order 13771 (April 5, 2017)clarifies that E.O. applies to guidance as well as regulations. It also sets out procedures for agencies to follow on the contingency they fail to identify sufficient regulations to rescind under the requirements of E.O. 13771.
- E.O. 13777 (“Enforcing the Regulatory Reform Agenda,” Feb. 24, 2017)directs agencies to designate Regulatory Reform Officers and Task Forces to carry out the Regulatory Reform agenda. This includes the directives of E.O. 13771, but also executive orders issued by previous administrations that direct retrospective review. This E.O. directs each Regulatory Reform Task Force to evaluate existing regulations and make recommendations to the agency head regarding their repeal, replacement, or modification, consistent with applicable law. The Task Force is to identify regulations that “eliminate jobs, or inhibit job creation; are outdated, unnecessary, or ineffective; impose costs that exceed benefits; create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies…[or] derive from or implement EOs or other Presidential directives that have been subsequently rescinded or substantially modified.” Those regulations that the Task Force identifies as “outdated, unnecessary, or ineffective” are to be priorities for regulation-cutting as the agency implements EO 13771’s offset scheme.
Selected Links
- Guide to Protecting Whistleblowers
National Council for Safety, Protection and Wellness - Case materials: Public Citizen, NRDC, and Communications Workers of America v. Trump
Public interest groups’ lawsuit alleging that the Two-for-One/Cost-Cap Executive Order violates the Take Care Clause of the Constitution and directs agencies to violate the Administrative Procedure Act. - Coalition for Sensible Safeguards
News and advocacy resources on anti-regulatory legislation - Center for Progressive Reform
Research and commentary from regulatory scholars. - Public Citizen
Litigation in defense of regulations. - Notice & Comment
Blogging from the Yale Journal on Regulation, including conservative perspectives. - The Regulatory Review
Week in review and opinion pieces from the Penn Program on Regulation
In the Media
- The Fight Over Fair Housing Goes to Court (Again) (Citylab, November 7, 2017)
- Bethany Davis Noll and Richard Revesz, “Pruitt’s Deregulation Spree Has Cut Corners” (Slate, July 2017)
- “The Deep Industry Ties of Trump’s Deregulation Teams,” New York Times (July 11, 2017)
- “EPA asked the public which regulations to gut — and got an earful about leaving them alone,” Washington Post (May 16, 2017)
