This op-ed originally ran in The New York Times.

After decades of failed efforts to enact "regulatory reform" bills, Congress appears to be within a few votes of approving reform legislation that would strip Americans of important legal protections, induce regulatory sclerosis and subject agencies that enforce the nation's laws and regulations to potentially endless litigation.

This is not reform. These bills would sabotage agency regulation with legislative monkey wrenches. Key compromises about agency power and procedures, worked out under the 1946 Administrative Procedure Act, would be discarded by these overwhelmingly anti-regulatory bills. And because they would be statutory changes, not mere presidential edicts, these changes would likely long outlive the Trump administration.

It is easy to complain about regulation, of course, and much could surely be improved. But government rules are the foundation of the safety net that protects Americans. Are you ready to abandon …

I don't know what executive order the Chamber of Commerce is defending in the amicus brief it filed Monday in Public Citizen v. Trump. But it doesn't appear to be the one at issue in that lawsuit. The lawsuit charges that Trump's "one-in, two-out" executive order is unconstitutional. That's the order he issued in January requiring agencies to repeal two regulations for every one they issue. It requires agencies to make sure that the costs imposed by any new regulation are entirely offset by the costs of the two repealed regulations. And, yes, it's just as absurd as it appears at first glance – akin to a business deciding to close two old stores for every new one it opens in order to offset the costs of the new store, entirely ignoring the revenue side of the ledger. 

Perhaps the inherent absurdity is …

Tomorrow, the Senate Committee on Homeland Security and Governmental Affairs will examine and likely vote on President's Trump's selection for Administrator of the Office of Information and Regulatory Affairs (OIRA). OIRA is the most important government office most Americans have never heard of. It is the depot through which all regulatory freight must pass, the place where ideas go to be sorted, weighed, green-lighted, or buried. It's the ganglia of the president's bureaucratic brain. At the center of those fluttering gray cells, if Trump gets his way, will be Neomi Rao.

Rao comes to the position with scant management experience and little in the way of a record. But as a professor at George Mason's Antonin Scalia Law School, she has managed to raise serious questions about how she would evaluate the health and environmental protections we all rely on.

Following Rao …

This post was originally published on The Regulatory Review.

Over the last several years, conservative opponents of regulatory safeguards for health, safety, the environment, consumers, and the economy have gradually coalesced around a grand theory for why the supposed balance of policymaking powers between the executive and legislative branches has become so, well, unbalanced. These opponents’ theory goes something like this: Congress faces strong incentives to delegate too much substantive policymaking authority to federal agencies because delegation creates a political “win-win.”

By passing statutes with broad aspirational goals, members of Congress avoid the politically fraught task of actually specifying the changes required to achieve their goals. Nonetheless, legislators still get credit from voters for taking this highly visible, if not particularly bold, action. That is Win Number 1.

Later, it is not Congress, but the federal agencies that end up bearing the brunt of outrage when they …

Yesterday, ten distinguished law professors, all of them CPR Member Scholars writing in their individual capacities, filed an amicus brief in support of a lawsuit brought by Public Citizen, the Natural Resources Defense Council (NRDC), and the Communication Workers of America challenging as illegal and unconstitutional the Trump administration’s Executive Order 13771. The order requires agencies to identify at least two existing rules to repeal for every new one they seek to issue and to ensure that the money companies would save by not having to comply with the two health, safety, environmental, or other regulations would fully offset the compliance costs associated with the new rule.

The goal of the amicus brief is to further elucidate the “fundamental principles of administrative law and policy” that undergird the legal arguments raised in the lawsuit. To do this, it traces in painstaking detail the history of U …

Originally published on The Regulatory Review by CPR Member Scholar William Funk.

Professor Kent Barnett recently opined in The Regulatory Review that formal rulemaking really is not that bad and may actually be a good thing in certain circumstances. His argument deserves closer review because the proposed Regulatory Accountability Act (RAA) would require the equivalent of formal rulemaking—or what the bill calls a "public hearing." Barnett may well be right to suggest that in some situations the costs of formal rulemaking could be justified, but he could not be more wrong to argue that the circumstances that would trigger formal rulemaking under the RAA are among those situations.

As Barnett acknowledges, the U.S. Supreme Court, scholars, policy makers, and other interested parties all have condemned formal rulemaking. Why? Because formal rulemaking utilizes a judicial, trial-like procedure to adopt rules that are legislative, not adjudicative, in …

Today, 27 Member Scholars of the Center for Progressive Reform, leading academics who specialize in administrative law and regulatory policy, submitted a letter to Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson and Ranking Member Claire McCaskill outlining their serious concerns with the Senate Regulatory Accountability Act. That bill is among several aimed at undermining our system of regulatory safeguards that are set to be marked up by the committee at its business meeting on Wednesday. Others set to be marked up include the Senate REINS Act and the Senate Small Business Regulatory Flexibility Improvement Act. 

In the letter, CPR Member Scholars identified seven troubling aspects of the bill:

• A requirement for a trial-like, adversarial hearing for many "major" rules and all "high-impact" rules that will likely lead to inefficient and undemocratic rulemaking;  
• A vague and misplaced requirement that agencies choose the most "cost-effective" regulatory …

CPR Member Scholars continue to make their voices heard on the nation’s opinion pages. You can always review the latest and greatest pieces on our op-eds page, but here’s a roundup from the last few weeks to save you a couple clicks.

Two CPR Member Scholars had pieces in The American Prospect in mid-April. Tom McGarity called out the right wing’s on-again, off-again allegiance to states’ rights in "Trumping State Regulators and Juries." McGarity writes, “Conversations about how progressive states should resist regressive Trump administration policies and sidestep Republican control of Congress often ignore the elephant in the room—the power of the federal government to preempt state regulations and even the ability of victims of corporate abuse to seek relief in state courts.” The right wing has been supportive of regulatory preemption for some time now, its decades’ long use of states’ rights …

Today, Center for Progressive Reform Member Scholars and staff are releasing a comprehensive analysis of the Senate Regulatory Accountability of 2017 (S. 951), which Sens. Rob Portman (R-OH) and Heidi Heitkamp (D-ND) introduced last week. Our analysis explains how S. 951 would drastically overhaul the Administrative Procedure Act, which has successfully guided agency enforcement of public safeguards for over 70 years. A summary of the key findings of the analysis is also available. 

The bill is the latest legislation to be put forward by conservative members of Congress who want to revamp the process by which the Environmental Protection Agency, the Food and Drug Administration, the Occupational Safety and Health Administration, the Consumer Financial Protection Bureau, and others craft the regulations that protect us from physical and financial harm. So, how does Portman and Heitkamp's bill differ from all the rest? They claim theirs is much …