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 …

CPR Member Scholar Bill Buzbee has an op-ed in The New York Times this morning in which he observes that the Supreme Court’s conservative majority faces a true rubber-meets-the-road test as it considers the Trump administration’s determination to add a citizenship question to the 2020 census, despite multiple procedural and substantive problems with the plan.

The administration’s thinly veiled objective with the additional question is to discourage participation in the census by non-citizens, who might understandably fear that revealing their status on an official government questionnaire could result in deportation. Since the Constitution makes clear that the purpose of the census is to count the total population, not just citizens, such questions haven’t been included since 1960.

But Commerce Secretary Wilbur Ross apparently regards that problem as a feature, not a bug, no doubt with the approval of the president. So, in March …

One of the most successful environmental regulations in U.S. history is under attack from the Trump EPA – and its demise might be accomplished by shady bookkeeping. That is the conclusion of comments filed by Center for Progressive Reform Member Scholars and staff on April 17.

Since it was issued in 2011, the Mercury and Air Toxics Standard (MATS), which establishes rigorous technology-based standards to limit hazardous air pollution from fossil-fueled power plants – has reduced electric utilities' emissions of neurotoxic mercury by 81 percent. Significantly, the rule has achieved these reductions at less than a third of its projected costs while delivering public health savings estimated at billions of dollars each year.

The attack has come in the form of a proposal to undo what is known as the "appropriate and necessary" finding that undergirds the rule. In the provision of the Clean Air Act that authorized …

Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies – specifically designed by Congress to be less prone to political interference than executive agencies – into a far more centralized CRA review process.

The CRA requires federal agencies to send newly adopted rules to the House and Senate before the rules become effective. This enables both houses the opportunity to adopt a joint resolution disapproving the rule. If both houses adopt such a resolution, it is sent to the President for his signature or veto. Although only one rule was disapproved under the CRA in its first 20 years of existence, in the first year of the Trump administration, some 14 regulations were disapproved under the CRA.

The CRA …

Originally published on Legal Planet.

Every day, it seems that there is a headline about some investigation involving campaign finance violations, the White House, or the actions of some foreign power. Perhaps that's all the bandwidth that Congress has. But there are other areas calling out for inquiry. Here are just a few:

CAFE Standards. The car industry asked for delays and modifications in fuel efficiency standards. The administration came back with a drastic rollback that went far beyond what industry requested, to the dismay of at least some major car firms. How did that happen? Outside economists scoff at the analysis Department of Transportation officials ran roughshod over EPA staff, whose complaints were squelched by the White House. Who exactly was responsible for those decisions? And what role did the oil companies play behind the scenes? There are already indications that oil companies were somewhat involved …

Originally published on Legal Planet.

Cost-benefit analysis has long been the target of environmentalist ire. But one lesson of the Trump years has been that economic analysis can be a source of support for environmental policy — it is the anti-regulatory forces who have to fudge the numbers to justify their actions. Most energy and environmental economists are aghast at Trump's assaults on climate change regulations — many of them would instead favor stricter regulation over the status quo. Maybe it's time for at least a temporary ceasefire while we are allies in resisting Trump's rollbacks.

There is little doubt that the Reagan administration adopted cost-benefit analysis as a tool for reaching its own preferred deregulatory outcomes. The Office of Information and Regulatory Affairs (OIRA) was put in charge of cost-benefit analysis with the expectation that it would be a death trap for regulations. OIRA seemed happy to oblige …

During her confirmation hearing, Neomi Rao – then the administrator of the White House Office of Information and Regulatory Affairs (OIRA) and President Trump's pick to fill Justice Kavanaugh's vacant seat on the U.S. Court of Appeals for the D.C. Circuit – attracted a lot of controversy. Much of it surrounded the outrageous student newspaper commentaries she wrote as an undergrad, in which she casually passed judgment on date rape victims and the scourge of creeping multiculturalism. Now that Rao has been sworn in to a lifetime appointment of passing judgment with the full effect of the law, it's worth looking at another dispute that arose during the hearing – namely, how she should approach her legal and ethical responsibility to recuse herself from cases involving rules she worked on as OIRA administrator.

In an exchange with Sen. Dianne Feinstein (D-Cal.) during the hearing, Rao pointedly refused to …

Today, the Center for Progressive Reform and 46 other environmental, labor, and public health organizations sent a letter to Environmental Protection Agency (EPA) Administrator Andrew Wheeler calling on him to withdraw the agency's pending "benefits-busting" rule. Wheeler was recently confirmed as the official agency head, and, as the letter notes, he can begin his tenure on the right track by abandoning this dangerous rulemaking. The proposal is a vestige of the disastrous Scott Pruitt era that would radically overhaul how the agency performs "cost-benefit analysis" on the environmental and health safeguards it is developing so as to make the results even more biased against public protections.

The broad range of public interest groups signing on to the letter confirms just how far-reaching a threat the benefits-busting rule poses, not just at EPA, but all agencies charged with protecting the public interest. Indeed, the changes it …

This post is adapted from a recent law review article published in the University of Missouri—Kansas City Law Review.

In myriad ways – from speeches, favoritism toward polluting industries, and ill-advised regulatory rollbacks – the Trump administration has consistently exhibited unrestrained antagonism toward regulatory safeguards for health, safety, and the environment. One of the earliest manifestations of that antagonism – and arguably one of the most pernicious – was an executive order signed by the president only ten days after his term began.

Executive Order 13771, hereafter referred to as the "one-in, two-out" order, contained three directives to all federal departments and agencies. First, it provided that "unless prohibited by law, whenever an executive department or agency…publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed." Second, for fiscal year 2017, the president's order directed …