Staff and Board members of the Center for Progressive Reform (CPR) denounce the murder of George Floyd by Minneapolis police officer Derek Chauvin on Memorial Day. We stand with the peaceful protestors calling for radical, systemic reforms to root out racism from our society and all levels of our governing institutions and the policies they administer.

CPR Member Scholars and staff are dedicated to listening to and working alongside Black communities and non-Black people of color to call out racism and injustice and demand immediate and long-lasting change. Racism and bigotry cannot continue in the United States if our nation is to live up to its creed of life, liberty, and the pursuit of happiness for all.

CPR's vision is thriving communities and a resilient planet. That ideal animates all of our work, but systemic sources of inequality and injustice stand as massive barriers to the realization …

Originally published by The Regulatory Review. Reprinted with permission.

Much of the discussion of the Trump administration's failed handling of the COVID-19 pandemic has focused on its delayed, and then insufficiently urgent, response, as well as the President's apparent effort to talk and tweet the virus into submission. All are fair criticisms. But the bungled initial response—or lack of response—was made immeasurably worse by the administration's confused and confusing allocation of authority to perform or supervise tasks essential to reducing the virus's damaging effects. Those mistakes hold important lessons.

The administration's management of the pandemic has been hampered by misallocation of authority along three different but interacting dimensions. First, it has been marred by overlapping authority that has resulted in waste, while failing to capitalize on this overlap's potential to safeguard against shirking and inaction. Second, it has reflected a thoughtless mix of centralized and …

Earlier this week, we submitted a public comment to the Environmental Protection Agency (EPA), criticizing the agency's March 2020 supplemental proposal for its “censored science" rulemaking. This rule, among other things, would require the public release of underlying data for studies considered in regulatory decision-making, and thus might prevent the agency from relying on such seminal public health research as Harvard’s Six Cities study, which have formed the backbone of many of the EPA’s regulations, simply because they rely on confidential data.

First proposed during the brief and tumultuous tenure of former EPA Administrator Scott Pruitt, the rule, officially known by its Orwellian moniker “Strengthening Transparency for Regulatory Science,” has become a key part of the Trump administration’s assault on the agency’s credibility and authority. Indeed, the arrival of this administration has seen the EPA completely abandon its mission of protecting public health …

Anyone following the news about the coronavirus knows about the vocal opposition by libertarians and other right-wing extremists to government measures designed to control the pandemic. On television, the coverage has focused on angry, gun-toting protesters. But there's another avenue of opposition to the virus-related safeguards, one that's less photogenic but no less divorced from reality. In recent weeks, a number of land and business owners have filed lawsuits claiming stay-at-home orders and business closings represent “takings” of private property under the Fifth Amendment to the U.S. Constitution. These takings claims should be – and likely will be – rejected based on firm U.S. Supreme Court precedent.

In the absence of clear direction from the Trump administration, states have been left largely to themselves to devise emergency rules designed to “flatten the curve’” of new coronavirus cases and reduce the toll of sickness and death. Most states …

Originally published on Legal Planet. Reprinted with permission.

If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated? That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate. The lawyer challenging Obamacare said, “No, Congress couldn’t do that.”

What’s shocking is that this may have been the correct answer. Conservatives on the Supreme Court have curtailed Congress’s ability to legislate about anything other than economic transactions, and an epidemic is not an economic transaction.

The 2012 oral argument in the Supreme Court

Every four years, as presidential elections draw near, the political appointees driving the incumbent administration's regulatory agenda put their feet on the gas, working to cover as much ground as they can before their boss's term is up. It makes no difference whether the current White House occupant is running for reelection or heading off into presidential library-land; they all want to get as much done while they control the steering wheel.

The one thing that usually constrains them, particularly first-termers, is the politics of the moment. Candidates for reelection aren't interested in seeing their agencies promulgate rules that will inflame opposition, and retiring presidents worry a lot about their legacy and aren't so eager to tarnish it with firestorm-inducing midnight regulations. That, at least, has been the norm. But as with so many other things about the Trump administration, standard rules don't apply. And so, we're …

Over the last month, the scripts of the daily White House COVID-19 briefings have followed a familiar pattern: President Trump leads off with assurances that the crisis remains “totally under control” and that miracle cures are just around the corner. Then agency experts come to the microphone and tell a very different story.

For example, on March 19, the president reported that the Food and Drug Administration (FDA) “very, very quickly” approved a malaria drug, hydroxychloroquine, for treating COVID-19 that it had previously approved for lupus, malaria, and rheumatoid arthritis. Later in the briefing, Dr. Anthony Fauci, the long-time head of the National Institute for Allergy and Infectious Diseases, cautioned listeners that controlled testing would have to be completed before we know whether the drug works on the novel coronavirus. And FDA later warned that it had definitely not approved hydroxychloroquine for fighting the virus.

The warnings …

UPDATE (4/29/20): CPR's Deregulation on Demand paper was recently cited and discussed in an amicus brief filed by Sens. Whitehouse, Merkley, Gillibrand, Schatz, and Markey supporting a case against the ACE rule (American Lung Association v. EPA). You can read the brief here.

Who does the Environmental Protection Agency (EPA) work for? The answer would seem to be us, the American public, given that the statutes it is charged with implementing are focused first and foremost on protecting our health and the natural environment we all depend upon. The Trump administration, however, has transformed this critical protector agency into a powerful of tool of corporate polluters, one dedicated to fattening these industries’ already healthy bottom lines at the expense of the broader public interest.

The evidence of this brazen degree of corporate capture at the Trump EPA abounds. The upper echelons of the agency’s …

Originally published on Expert Forum, a blog of the American Constitution Society. Reprinted with permission.

It has often been observed that natural disasters bring out the best and worst in people. Sadly, with regard to environmental protection, the coronavirus pandemic has brought out the worst in the Trump administration. Using the pandemic as a pretext, Trump's EPA has continued to propose and implement substantial rollbacks in important safeguards to our health and the environment while issuing an unduly lax enforcement policy.

For example, the administration recently issued a final rule rolling back automobile fuel efficiency standards. Its new regulation effectively undoes the federal government's program to limit greenhouse gas emissions. In a severe blow to global efforts to address the climate crisis, the regulation allows motor vehicles driven in the United States to emit almost 1 billion tons more carbon dioxide than would have been permitted under …