Rep. Elijah Cummings of Maryland was different from most other lawmakers we see today. He embodied a moral authority that others try to project but that for him was unquestionably authentic. When he spoke of working on behalf of "the people," there was never a shred of a doubt that he meant just that.

Rep. Cummings is a vivid reminder that our democratic institutions work best when they are open to genuinely diverse perspectives. His personal experiences with adversity and injustice helped forge the views he brought to his work as representative of Maryland’s 7th District, which includes some of the most economically distressed areas in the country. These lived experiences no doubt led him to view his constitutional duty to "promote the general Welfare" differently from many of his colleagues and to take that duty much more seriously.

Rep. Cummings brought this unique perspective …

Just when it seemed that President Donald Trump was completely immune to accountability for his various abuses of power, impeachment proceedings against him have quickly picked up steam over the last couple weeks.

Laying aside what happens with Trump, it's significant that it was a whistleblower complaint from a current CIA officer that helped expose the president's misconduct. (Reports that a second whistleblower, another intelligence official, is preparing to step forward have emerged in recent days.)

Therein lies one of the many important civics lessons to be drawn from the bit of history we're witnessing: The process to this point has confirmed the value of a high-quality, independent, and professional federal bureaucracy to the effective functioning of our democracy. For starters, while Trump administration political appointees and members of Congress on both sides of the aisle are likely to dominate the headlines as this drama plays out …

Last week, President Trump unleashed the latest volley in his administration's efforts to bring about the "deconstruction of the administrative state" with the signing of two new executive orders relating to agency issuance and use of "guidance documents." The first purports to ensure "improved agency guidance," while the second claims to promote "transparency and fairness" in the use of guidance for enforcement actions. The bottom line for the orders is that, with a few potentially big exceptions, they are unlikely to have much practical impact. Instead, this is mostly a messaging exercise by the Trump administration aimed at advancing the broader conservative campaign to delegitimize the regulatory system by propagating the tired old myth that regulatory agencies are unaccountable and pose a threat to our society.

Before diving into orders' substance, two housekeeping points need to be addressed. First, what are guidance documents anyway? They …

Last week's televised climate town hall saw several Democratic presidential candidates outline an impressive array of policies that, if implemented effectively, offer some measure of hope for averting the worst consequences of the climate crisis for us and future generations. The operative concept there – lurking in the background and too often taken for granted – is effective implementation. The fact of the matter is that meeting our country's greatest challenges – climate change, economic inequality, systemic racism, access to quality health care – will require effective implementation, and that in turn will require a more robust, modernized, and inclusive regulatory system than we currently have.

Conservatives have long vilified the U.S. system of regulatory safeguards, while establishment Democrats – when not trying to ignore it altogether – have at best accepted regulation only grudgingly and apologetically. As demonstrated at a June CPR conference, though, progressives are staking out a new, more …

Originally published by The Regulatory Review. Reprinted with permission.

Public participation is one of the cornerstones of U.S. administrative law, and perhaps nothing better exemplifies its value than the notice-and-comment rulemaking process through which stakeholders can provide input on a proposed rule. Yet there remains an inherent tension in the democratic potential of this process. In reviewing final rules, courts demand that agencies demonstrate that those rules are responsive to any substantive comments they receive. But courts generally limit this requirement to comments containing legal or technical information.

This approach to judicial supervision of agency rulemaking is just one of many forces that have helped transform what should be a democratic rulemaking process into a technocratic exercise. On the plus side, expertise-centered rulemaking has substantially improved regulatory quality. These gains, however, have come with some important unintended consequences.

For one, the growing hegemony of technocratic decision-making …

Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor polluters at the expense of people and our environment.

As the op-ed explains, cost-benefit analysis was always meant to provide industry with a powerful trump card in the rulemaking process. Industry expected its methodologies – while masquerading as objective and rational – would systematically favor weaker or no regulations. By and large, that held true for the nearly 40 years that cost-benefit analysis has ruled regulatory decision-making. But in the environmental …

Next Wednesday, June 5, CPR is hosting a first-of-its-kind conference on Regulation as Social Justice: Empowering People Through Public Protections, which will bring together a diverse group of several dozen advocates working to advance social justice to serve as a wellspring for the development of a progressive vision for the future of U.S. regulatory policy. Much of the day’s proceedings will be dedicated to an innovative form of small group discussion sessions that we refer to as “Idea Exchanges,” which will call on participants to share their experiences working with federal government program implementation and offer ideas on how agencies can do a better job of promoting social justice and addressing unmet community needs as part of their work.

To help prompt thinking ahead of the conference, we have produced a briefing memo that introduces the major issues that will be discussed throughout the day …

In a memo sent last week but just now released, EPA Administrator Andrew Wheeler backtracked a bit on one of the administration's initiatives to undercut sensible safeguards. His May 13 memo abandons the agency's push last year to establish uniform standards for bending agency decision making in favor of cost-benefit analysis, regardless of statutory directives, and instead directs that this effort follow a statute-by-statute approach.

Wheeler’s retreat on this particular effort to ignore the life-saving benefits of environmental rules is good news. He acceded to the concerns raised by CPR and other legal experts that the Clean Air Act, Clean Water Act, and various other environmental laws impose different requirements, making a one-size-fits-all approach to cost-benefit analysis both impractical and unlikely to survive legal challenge. But as with everything this administration does when it comes to health, safety, and the environment, when Wheeler talks about improving …

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 …