Countering Neoliberal Logic with the Vulnerable Human Subject
This post was originally published on LPE Blog as part of a symposium on vulnerability theory and law and political economy (LPE). Reprinted with permission.
Assumptions about the human condition shape the legal rules and institutions that structure the economy and state. By re-centering law on a clearer understanding of the human subject, vulnerability theory can strengthen law and political economy (LPE) efforts to address accelerating threats to democracy, equality, and the environment. In particular, vulnerability theory responds to neoliberalism’s use of the liberal ideal of individual autonomy to undermine liberal goals of democracy, human rights, and equality. Those goals can be better advanced and defended by affirming the universal human fact and societal value of embodied, embedded beings.
Law plays a leading role in disseminating and legitimating neoliberal ideas. Yet, legal theory has lagged in addressing neoliberalism as a paradigm shift. As Corinne Blalock astutely observes, neoliberal arguments deftly turn left critiques of liberalism toward right-wing ends. As one strategy for resisting that maneuver, Blalock urges legal theory to dislodge the neoliberal reconfiguration of the legal subject as the entrepreneurial, self-reliant individual. That idealized subject helps shape a neoliberal narrative where unequal, self-serving, and undemocratic power fuels freedom …
Environmentalists have complained for years about presidential control of the administrative agencies charged with protecting the environment, seeing it as a way of thwarting proper administration of environmentally protective laws. But the U.S. Supreme Court in two recent decisions — Seila Law v. CFPB and Collins v. Yellen — made presidential control over administrative agencies a constitutional requirement (with limited and unstable exceptions) by embracing the unitary executive theory, which views administrative agencies as presidential lackeys. My new book, The Specter of Dictatorship: Judicial Enabling of Presidential Power, shows that the unitary executive theory is not only bad for environmental policy, but a threat to democracy’s survival, upon which environmental policy and all other sensible policy depends.
In The Specter of Dictatorship, I trace the modern movement toward a unitary executive back to former President Ronald Reagan’s executive order establishing centralized review of agency decisions by …
As many of you know, I started as the Center for Progressive Reform's new executive director this month. I am thrilled to join CPR in this historic moment, to commit the next stage of my life to fight for the integrity and strength of our democracy, and to establish, as FDR said 90 years ago, "the purpose of government to see that not only the legitimate interests of the few are protected but that the welfare and rights of the many are conserved."
CPR's mission speaks to me personally. My own winding story saw me raised in the American South, defending refugees and human rights in Central America in the '80s, living in Cuba in the '90s, and, for the past 15 years, working at Oxfam to defend workers' rights and socially vulnerable communities in the United States. The fault lines of race and entitlement that …
The pro-Trump insurrection that took place at the United States Capitol on January 6 was the most serious threat to the rule of law in our country in well over a century. Unless we fully grapple with the conditions and causes that gave rise to it, this threat will linger, waiting for the next spark to reignite it.
The Capitol insurrection is the predictable culmination of decades of self-serving attacks on "government." Especially since the Reagan administration, conservative lawmakers have increasingly amassed political fortunes by stoking the anger and resentment of millions of Americans who have been left behind by an ever more lopsided economy.
Their formula rests on a self-fulfilling prophesy: Attack government effectiveness to justify deep cuts to government functions, which in turn fuels new attacks on government and new calls for even deeper cuts.
Ordinarily, our free press would be responsible for halting …
Editor’s note: This post is part of the Center for Progressive Reform’s Policy for a Just America initiative. Learn more on CPR's website.
At long last, we’ve reached “safe harbor” day, when states must resolve election-related disputes. Under federal law, Congress must count votes from states that meet today’s deadline. Donald Trump is essentially out of time to steal a second term; our democracy, it appears, will survive, at least for now.
Like many of you, I’ve been thinking a lot about the election — and what Trump’s relentless efforts to undermine it mean for our country. I’ve been thinking about the last one, too, when Trump took the helm of our country after a campaign of lies and hate — even though he received nearly 3 million fewer votes than his opponent.
I’ve been reflecting on other moments when our …
American democracy, if it is to mean anything, demands that all eligible voters get to exercise their right to vote and that their votes actually be counted. We have watched with alarm as the former principle has come under unilateral attack from one political party for self-serving reasons in recent weeks. We are outraged to see the president attack the latter.
CPR is committed to meaningful public participation in all of America’s democratic institutions. We believe such participation is essential for ensuring more just and effective policies, but also for imbuing those policies with legitimacy and public confidence. Public participation is critical to empowering all Americans to have their say in our centuries-long project of forming a more perfect union.
As of early this afternoon, the presidential election is still undecided. Millions of votes in states that will ultimately determine the outcome remain uncounted. We join …
This is the second part of a two-post set. Read the first post here.
In yesterday's post, I discussed the essentially undemocratic ways that conservatives have come to the brink of a 6-3 majority on the Supreme Court and examined one significant implication for regulatory policy: the likely effect on the Court's view on Chevron deference. In this second post, I explore several other ways the Court could undermine the essential democratic character of the regulatory system.
Nondelegation. Progressives dodged a big bullet in 2019 when the Supreme Court handed down its decision in Gundy v. United States. In the case, conservatives sought to resuscitate a long-dormant doctrine known as nondelegation, which generally prohibits Congress from transferring its legislative authority to another branch, but again fell one vote short of doing so. Similar to Chevron deference, conservatives believe that the federal courts’ failure to enforce a more …
This is the first part of a two-post set. The second post is available here.
Last week, Matthew Yglesias published an important piece at Vox explaining the many ways conservatives have succeeded in exploiting fundamentally undemocratic features of our constitutional structure of government to advance their policy agenda. This strategy will have reached its grotesque culmination if they manage to seat Judge Amy Coney Barrett on the U.S. Supreme Court.
He’s rightfully angry about the situation – as should we all be – but the story he tells, thorough and infuriating as it is, misses an important point: It could actually get much worse. That’s because it's likely that Barrett will be a reliable vote in support of advancing the conservatives’ dream of stripping the U.S. regulatory system of its essential democratic features, transforming it into yet another vacuum cleaner with which the nation’s …
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