Enforcing the 14th Amendment’s Bar on Insurrectionist Officers and Candidates

With the Senate’s acquittal of former President Trump, the focus now turns to whether Section Three of the Fourteenth Amendment prohibits him from serving as President again. Until January 6th, Section Three was perhaps the most obscure part of the Constitution. The text states, in part:

No person shall be a Senator or Representative in Congress, or
elector of President and Vice President, or hold any office, civil
or military, under the United States, or under any State, who,
having previously taken an oath, as a member of Congress, or
as an officer of the United States, or as a member of any State legislature, or as an
executive or judicial officer of any State, to support the Constitution of the
United States, shall have engaged
in insurrection or rebellion against the same . . .

Section Three was ratified to exclude former civil officials and military officers who joined the Confederacy from serving in office unless Congress (by a two-thirds vote in each House) extended a waiver. The provision was enforced vigorously during Reconstruction, in part through civil actions brought against ineligible officials under Section 14 of the First Ku Klux Klan Act. In 1872, though, Congress granted amnesty to most of the men covered by Section Three in the hope that this would reconcile Southern whites to the rest of the Fourteenth Amendment. This hope was misplaced, and Section Three soon sank from view.

Section Three is once again relevant due to the extraordinary events at the Capitol and the widespread condemnation of the attack as an insurrection by Republicans and Democrats in Congress. This characterization, reinforced by the article of impeachment adopted by the House of Representatives that expressly invoked Section Three, strongly suggests that anyone who “shall have engaged” in that insurrection after having sworn an oath to protect the Constitution is now ineligible to serve.

Even if Congress does nothing to enforce Section Three or name the former President as an insurrectionist, the issue will be litigated if Trump tries to run again in 2024. State election officials charged with determining ballot access in the presidential primaries will have to make an initial determination on whether he is eligible to serve under Section Three. Some of these officials will invariably say that Trump is ineligible, and he will then challenge those rulings in court. While there is authority holding that Section Three is not self-enforcing in an area under federal jurisdiction (for instance, in the District of Columbia), states did enforce Section Three on their own during Reconstruction and can do so again. The Supreme Court will almost certainly be asked to hear at least one of the state cases on Trump’s eligibility.

Nevertheless, Congress should take action to enforce Section Three against anyone engaged in the January 6th insurrection. There is currently no federal statutory authority to enforce Section Three, and if this deficiency is not addressed many problems will follow. First, some states may simply choose to ignore Section Three or do minimal enforcement. Second, having each state enforce Section Three in its own way will result in a haphazard system especially ill-suited to resolving a question of presidential ineligibility. Third, if former President Trump runs again, his eligibility must be determined promptly--before any elections take place--otherwise the Republican nominating contest will be thrown in chaos. But the ability of the ex-President or his opponents to engage in litigation gamesmanship during a primary process where each state is acting independently could easily thwart a prompt resolution by the Supreme Court. And it would be particularly unfortunate if the Court were called upon to resolve the issue in an emergency application for a stay on the eve of a primary where due deliberation on the arguments could not occur.

Congress can resolve many of these issues by using its enforcement authority under Section Five of the Fourteenth Amendment to create a rational and fair process for Section Three claims. For example, these claims could be assigned to federal court and even to a specific court such as the U.S. District Court for the District of Columbia. Likewise, Congress could provide for a three-judge district court rather than a single district judge as the court of original jurisdiction, with an expedited appeal to the Supreme Court. The Attorney General could be given primary authority to initiate Section Three actions, perhaps alongside a limited private right of action. Finally, Congress can determine the standard of proof that should apply in a Section Three case.

In addition, Congress could adopt a concurrent resolution making factual findings about the insurrection and expressing its view that the former President is now ineligible to serve under Section Three. This would be a non-binding statement of Congress’s opinion that could be cited as persuasive authority in any future litigation. Contrary to some media commentary, such a resolution would not be a bill of attainder criminally punishing someone without a trial prohibited by the Constitution. First, a concurrent resolution is not a bill. Second, a bill of attainder is binding, which makes that act completely different from a non-binding concurrent resolution. Third, bills of attainder involve a criminal punishment, whereas there is considerable authority describing Section Three as creating only an eligibility requirement for office. Fourth, the Framers of the Fourteenth Amendment self-consciously drafted Section Three as a modification of the Bill of Attainder Clause, which makes the attainder argument singularly inapt here. Congress is free to express its collective view of Section Three as applied to Trump, though 60 votes would be required in the Senate to overcome a filibuster. But Congress does not need to adopt such a concurrent resolution for Trump to be found ineligible by a court.

If the ex-President does seek office again in 2024, he will be able to make several arguments in any litigation challenging his eligibility to serve. Trump can contend, as one of his lawyers did during the impeachment trial, that what occurred on January 6th was not an insurrection. He can also say that he was not “engaged in insurrection.” Note, though, that “engaged” connotes a broader understanding of participation than an “incitement” of insurrection, which was the charge in the article of impeachment that 57 senators found convincing. Engagement is also largely a factual question, which means that the ex-President could be compelled to testify about his actions or required to produce any records in his possession about those events. Lastly, Trump could argue that Section Three does not cover the President or the presidency in part because that office is not specifically mentioned in the text. On balance, I believe that this claim is unpersuasive. A similar point was raised in the Thirty-Ninth Congress, and the argument that the presidency was not included in the broad language describing the ineligible offices was rejected. Moreover, John Bingham—one of the leaders of the Joint Committee on Reconstruction—told his constituents in August 1866 that Section Three meant that “no man who broke his official oath with the nation or State, and rendered service in this rebellion shall, except by the grace of the American people, be again permitted to hold a position, either in the National or State Government.”

Let me conclude by clearing up two misconceptions about Section Three. First, a concurrent resolution of Congress declaring that Trump is ineligible does not make him ineligible. A disqualification from office imposed after an impeachment conviction is final. A concurrent resolution on Section Three would instead be non-binding and subject to judicial review. Only a court judgment can make an individual ineligible under Section Three. Second, the application of Section Three does not require a criminal conviction for insurrection. No such requirement was imposed when the provision was enforced during Reconstruction. Congress could, of course, choose “beyond a reasonable doubt” as the standard of proof in a Section Three action, but a standard like “clear and convincing evidence” would adequately protect the liberty interests of anyone sued as ineligible.

Section Three of the Fourteenth Amendment is the only part of the Constitution specifically directed at white supremacists. As a result, the use of that provision in response to an insurrection that carried the Confederate flag inside the Capitol is entirely appropriate and justified.

 

 

We must "keep [our] eyes on the prize, hold on"

I grew up in the Mississippi Delta. And while I think about that experience often for various reasons, this Black History Month--and in this political era--I'm thinking about some of the courageous leaders who sprang up from that rich soil to defend American constitutionalism. Today, I would like to introduce Fannie Lou Hamer.

Born to sharecroppers in Ruleville, Mississippi, Mrs. Hamer became active in the civil rights movement in her early thirties after having learned about the right to vote from Freedom Riders who visited Mound Bayou in August 1962. Even though she had failed the so-called “literacy test” twice (before passing it on the third try), Mrs. Hamer traveled throughout her community teaching Black Mississippians how to read and write, so that they could pass these same tests and secure their right to vote. For her audacity, she was fired, beaten, and ran out of her home by the Ku Klux  Klan. But like so many strong women, she persisted.

She brought national attention to the deprivation of civil rights in Mississippi by testifying at the Democratic National Convention of 1964, where she lamented being "sick and tired of being sick and tired." Fannie Lou Hamer's toil on the ground and before the cameras of the nation was pivotal to the passage of the Voting Rights Act and ensuring Black political representation in Mississippi and other intransient communities across the South. Though the circumstances that brought Mrs. Hamer to national acclaim were less than ideal, each time I consider her life, I am nevertheless filled with the sense that if our society and our system could create a soul as big as Mrs. Hamer's, then maybe there is hope.

I share this story today because we are in a moment that calls for more Fannie Lous. Fannie Lou Hamer was a nation-builder. She inherited a country that reneged on its most fundamental promise and instead of abnegating or abandoning the Constitution, she sought to make it more real. Today, we are inheriting a similar country, where injustice and inequality yet persist, and instead of confronting them head-on, our "leaders" prefer to incite insurrection and undermine constitutional democracy for personal gain. In the face of such recklessness, I think we are called to summon our inner Fannie Lou Hamer. We cannot give in to prolonged bouts of despair, hopelessness, or pessimism. These things will come, yes, but, in the robust tradition of the Black civil rights leaders of yesteryear, we must "keep [our] eyes on the prize, hold on."

Pandemics, Religious Supremacy, and Supreme Court Overreaching

The Governor of California is dealing with a pandemic in a state that is larger economically than all but five countries in the entire world. Over a million Californians have contracted the virus with almost forty-thousand people dead because of COVID-19. Balancing public safety and saving human lives while maintaining a functioning economy requires careful value judgments by the Governor and his scientific and economic advisors. The rules relating to public and private gatherings are complicated and vary within this huge state depending on the severity of the crisis in different counties. The rules are updated by elected officials on a regular basis depending on numerous objective indicators relating to the spread of the virus. There can be no plausible claim California has not carefully studied and considered how best to deal with this emergency.

The same, tragically, cannot be said for the ruling by the Supreme Court late Friday night overturning that part of California’s response to the pandemic banning indoor religious services (a ban on indoor singing and chanting was upheld for now). This ruling, second guessing excruciatingly hard decisions made by state political officials, is unjustified as a matter of law, inept as a matter of fact, and wholly irresponsible as a matter of politics. Religious supremacy, not religious liberty, is the Roberts Court’s current Trump card.

Where COVID-19 is most widespread, California prohibits indoor gatherings for many activities including museums, movie theaters, restaurants, and worship services while allowing such gatherings outside. This decision was based on scientific evidence that indoor activities especially where people sing or chant are especially dangerous and can lead to super-spreader events. Meanwhile, California has allowed retail and other businesses to remain open both to minimize the economic harm caused by the virus and because people do not tend to congregate while shopping the same way they do while attending religious ceremonies, movies, restaurants, and museums. The State was trying to treat like cases alike and there is not a shred of evidence that California’s rules relating to the virus were intended to discriminate against religion or religious activities.

Yet, the Justices, with barely any explanation at all, overruled the decisions by California’s health and government officials that at this time it is simply too risky to allow indoor gatherings where people congregate together for long periods of time. There were a number of different opinions in the case, and the conservative Justices divided on the ban on singing and chanting, but all six of them agreed that the ban on indoor worship services violated the free exercise cause of the first amendment. All three liberal Justices dissented from this holding.

One would expect that if unelected, life-tenured justices are going to overturn a state’s response to a world-wide pandemic they would at the least specify why the governing rules violate the Constitution. Alas, these justices felt no such obligation. There was no opinion for the Court, and only Justice Gorsuch, joined by Alito and Thomas attempted to justify the Court’s second-guessing in a “statement” not an opinion.

In this statement, Gorsuch relied improperly on what the Court calls “strict scrutiny” to argue that California had not fully explained and justified why it allows some inside activities such as shopping and hair cutting while banning indoor religious services, and he also suggested that the state would have done better to impose capacity restrictions and timing limits rather than a full-time ban. This aggressive judicial oversight might be proper in a case where the government targets religion for discriminatory treatment but is wholly inappropriate for generally applicable laws that treat religious and similarly situated secular activities in the same way.

The essence of Gorsuch’s “statement” is that “since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses.” That is true because the pandemic calls for general rules and religious services are in fact quite different than many shopping activities at retail stores. It does not take a scientist (or a lawyer) to understand that when people come together for indoor religious services, they are likely to spend more time together in close proximity than when shopping for groceries, clothing, or other essentials. The businesses most like places of worship, movie theaters, restaurants, and museums were treated the same way as religious services as were other indoor gatherings where first amendment speech activities were also implicated. Of course, one can always quibble with some lines that are drawn to deal with public health emergencies, but judges should not interfere with such laws absent obvious unreasonableness or discriminatory treatment of constitutionally protected behavior. California’s detailed rules regarding the deadly Covid-19 virus do not fall into either category. As is often the case, Justice Kagan said it best in dissent:

"Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic. The Court orders California to weaken its restrictions on public gatherings by making a special exception for worship services. The majority does so even though the  State’s policies treat worship just as favorably as secular activities (including political             assemblies) that, according to medical evidence, pose the same risk of COVID transmission. Under the Court’s injunction, the State must instead treat worship services like secular activities that pose a much lesser danger. That mandate defies our caselaw,  exceeds our judicial role, and risks worsening the pandemic."

Chief Justice Roberts also issued a short “statement” in which he paid lip service to the deference the Court owes elected officials during a world-wide emergency, but also responded to Justice Kagan’s dissent not with no facts or explanations justifying his vote but with the following nonsense: “I adhere to the view that the Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States. But the Constitution also entrusts the protection of the people’s rights to the Judiciary—not despite judges being shielded by life tenure…but because they are.”

If more people die because of the Court’s decision, the Justices will pay no political price given that they hold their offices for life. Rather than justifying overly aggressive judicial review, the justices’ job security should make them humbler and more modest not less so. Unfortunately, when it comes to religious activities, the Justices act much more like an ultimate veto council than a court of law. The Chief, of all people, should know, understand, and appreciate the difference.

More than Vaccines, the U.S. Needs Better Branding of Policies and Inoculation Against 'Stop the Steal-ers' Messaging

As a law professor who worked for almost 30 years at the U.S. Department of Justice and who has taught constitutional law and advises on messaging and marketing, I have an urgent message to President Biden and all agencies of the executive (Article II U.S. Constitution) branch. We need much more than access to COVID vaccines. We are in dire need of both better branding for the governmental policies to come and also consistent messaging inoculation against the views of millions of Americans who continue to believe that the 2020 presidential election was stolen. Currently 72% of Republicans hold this view. Although 165 million Americans voted in last November’s presidential election, 74 million people voted against the new president.

To effectively govern in this climate and achieve the change we seek, where (as the Capitol siege footage demonstrated) many there saw themselves, (and outfitted themselves) as Make America Great Again warriors, President Biden needs masterful, consistent, and pithy counter-MAGA messaging. As Opal Tometi, co-founder of Black Lives Matter has said, “words actually matter . . .” The new administration must heed this. It must learn from the communication and agenda-marketing-mistakes and successes of previous administrations. In order to reclaim ground for those who have been diminished by the last four years, the new administration needs to take two-steps, starting now.

Step-one is to implement product-branding on all executive actions and legislation. It can build on Biden’s campaign slogan and add Biden’s name to make a four-word alliteration and an eponymous acronym: Biden's Build Back Better.” “4Bs” would become synonymous with and serve as a short-hand for all programs from day one.  This would harken back to the 32nd president Franklin Roosevelt’s catchy colloquial alphabet-word-soup of agencies and programs (such as CCC, WPA, FDIC), used to wrest Americans out of the Great Depression. Imagine a campaign of “BBBB merch,” of baseball caps to banners, coinciding with executive orders and legislation rollouts.

Implementation of this first-step would reverse the curse of post-WW II Democratic administrations as poor marketers.  Does anyone remember the name or the successes of President Obama’s first-term infrastructure project? It financed and built 2,700 bridges, 42,000 miles of roads, and upgraded and repaired 800 airports. It was the most successful national infrastructure program since President Eisenhower’s 1956 Highway Act which built the interstate highway system.  Few Americans remember Obama’s program likely because it was a multi-syllabic, mouthful of words, with no easy to remember or to pronounce acronym: The American Recovery and Reinvestment Act. Imagine, instead, if the Obama program had been called “Build a Bridge”? Folks would remember the program and its importance.

Consider too how successful the rollout and acceptance of the Affordable Care Act would have been if it had been named the eponymous "Kennedy-Care" (for Ted Kennedy who sponsored health care reform). The public, a third of which has no idea that Obama Care and the ACA are the same thing, would have likely embraced it as a tribute to our 35th president, JFK.

At the same time that step-one is being implemented, step-two, counter-messaging, must be consistently applied. The administration can learn much from the emerging social science literature regarding the pandemic. Unrefuted misinformation early on has detrimental consequences. It impedes the ability to stop the spread because a significant number of people believed it to be a hoax. University of Chicago scholar Leonardo Bursztyn has determined that,  “ . . . misinformation in the early stages of a pandemic can have important consequences for how a disease ultimately affects the population.”

In order to facilitate effective governance over a four-year-term and make meaningful change, counter-messaging must begin in the early stages of the new administration.  Every "Stop the steal" utterance in any medium must be immediately met with the verbal counter-punch: "There was no steal; stop the lie.” The administration and those who support it must, in every forum and every encounter, do this every time.  The myth of the stolen election, a type of cognitive radicalism, cannot be eradicated with a presentation of facts, but rather ameliorated with better messaging.  In a report entitled “Countering Online Radicalization in America,” a 2012 bi-partisan-committee sponsored by the Department of Homeland Security, reported that such beliefs can be countered with better-crafted, more powerful, and attractive media products.

So much of 20th, now 21st-century U.S. politics, and, ultimately, the progress we seek, is marketing -- as we have all become consumer-purveyors of one or two-sentences of electronic information on our phone screens.  We are complicit and rely on the sparest of written content provided from any source over a screen.

With a daily fire-hose of information coming at us, the new administration must recognize that we need to be both “spoon-fed” in easily digestible, pithily named policy morsels and also to remind us of the daily vigilance needed to snuff out the current great lie.  For the sake of the continuation of our 1787 constitutional experiment, the Biden administration must take these two steps and make messaging a day-one priority.

Julie A. Werner-Simon is a former federal prosecutor who served as Deputy Chief of the Organized Crime Strike Force in Los Angeles. She recently completed a constitutional law fellowship at Southwestern Law School and is currently an adjunct law professor at Drexel School of Law in Philadelphia. 

 

"A Country Still Striving to Give its People Life, Liberty and the Pursuit of Happiness"

As the grandson of Joseph Woodrow Hatchett, who became the first African American appointed to the Florida Supreme Court since reconstruction and the only African American to win statewide election besides President Obama, the importance of participation in the democratic process was instilled in me at an early age. I can recall my mother talking about what it was like to be the daughter of a Florida civil rights icon during the civil rights movement. Those stories, as painful as they are, provided a greater understanding of democracy and all that it encompasses. It encompassed combatting institutionalized oppression and systemic racism, risk of loss of life and disfigurement, attendance at newly desegregated public schools, jail time for peacefully violating discriminatory laws and policies, and navigating discriminatory election practices and voter suppression. My grandfather, when describing what it was like to live during that time, once said, “Whites ruled everything and dared you to step out of line. We just weren’t going to take it anymore. That was the civil rights movement.” Against the backdrop of a rewarding, but also painful, motif of family history, I learned about the life-long struggle that was responsible for my very existence. 

My upbringing cultivated a passion for pursuing equality and justice for all. Shortly after my high school graduation, I enrolled at Florida Agricultural & Mechanical University. I declared political science my major, hoping to one day attend law school and to learn more about human relationships, societal norms, and its practical application to democracy. Speaking to the importance of engaging in the democratic process, my grandfather once noted that “law[s] shape[] the conduct of human relationships, how we live with other people. But human relationships should be powerful in shaping law.” Beyond immersing myself in the social landscape of college activities, I accepted an internship opportunity at the Executive Office of the Governor’s Office of Adoption and Child Protection. This experience brought me face-to-face with the very real-life consequences of decades of institutionalized racism, discriminatory policies and laws solely designed to shape the conduct of human relationships. The corollary was obvious and personified by the circumstances of the children and families we worked with. Using our understanding of human interaction as a guide during the legislative process may have helped the government avoid playing a role in creating the circumstances those children fell victim to. As you could imagine, this experience fueled my passion and had a profound impact on my views of life and the fragility of the human experience. As an upperclassman, I was invited to attend the Florida Student Leadership Forum on Faith and Values, which was hosted by former United States Senator Bill Nelson, and his wife, Grace. Its core mission is to train the next generation of community leaders, challenging them to embrace and apply concepts of humility, reconciliation, purpose, and passion. This experience provided a sense of hope, as it was the first time I had encountered a national leader that understood the power of human relationships and its role in shaping the law. 

Upon graduation from Florida Agricultural and Mechanical University, I decided to pursue my dream of becoming a lawyer and immediately enrolled in law school. At this point in my life, I became determined to graduate and use my legal education to effect positive change in my community. After my 1L year, I began searching for opportunities that would lead to a legal career path rooted in public service. During my 2L year, the opportunity was presented when I received an offer to serve as a judicial extern to the Honorable Monte C. Richardson, United States Magistrate Judge for the Middle District of Florida. In that role, I worked primarily on immigration and social security appeals, which were forms of the human experience I had not yet encountered, and I enjoyed this work very much. In fact, I continued this work beyond the expiration date of the externship, and, upon graduation, I was awarded pro-bono honors distinction for my achievements and the time I spent working as a judicial extern. I eventually graduated, sat for the bar exam, and began searching for employment. I was very fortunate and humbled to have been offered the opportunity to begin my legal career serving as law clerk to the Honorable Charles R. Wilson of the United States Court of Appeals for the Eleventh Circuit. After completing my clerkship, I joined the Office of the State Attorney for the Thirteenth Judicial Circuit of Florida, where I had hoped to serve the public interest for decades to come. While I thoroughly enjoyed working as an Assistant State Attorney, eventually, I decided that my personality, professional skill set, life-passion, and experience was better utilized defending the public interest, rather than prosecuting it. Today, I represent people who have been charged with crimes and those asserting constitutional rights violations against the government.   

All things considered, the last four years have been a glaring example of the importance of meaningfully and intentionally participating in democracy. But even in this shameful, tumultuous moment in our nation’s history, I remain optimistic for the future of America and democracy world-wide. I am hopeful because the United States Constitution vests all power in American citizens to realize and make good on America’s promises. But that power alone is unavailing without the affirmative and collective actions of all Americans working together to exercise and apply their collective power to achieve a more perfect union. Almost one half-century ago, during an interview for The South Magazine, my grandfather, speaking about his hope for the future of America over the next century, said his “dream [was] to see a country still striving to give its people life, liberty and the pursuit of happiness.” Looking back on the progress that has been made in America since, and considering the tremendous stress test our democracy underwent during the last four years—at times bending, but never breaking—I very much see an America still striving to give its people life, liberty, and the pursuit of happiness. I am now very much looking forward to teaching my children about democracy and how important it is for them to engage and participate meaningfully. They will know the struggle responsible for their very existence. 

Three Steps President Biden Can Take to Create a Progressive Regulatory Process

President Biden has a once-in-a-generation opportunity to reform the regulatory framework, ensuring that the government is well-equipped to address the COVID-19 pandemic, skyrocketing inequality, climate and racial justice, and other 21st century challenges. The Trump Administration undertook efforts to rewrite the rulemaking procedures to roll back regulations, and there is no doubt that President Biden must reverse these new procedures. However, it is insufficient to simply undo these changes. The current system does not serve progressive values and must be reformed.

The Administrative Procedure Act provides a simple roadmap for notice-and-comment rulemakings, yet all presidents since Ronald Reagan have imposed additional procedures onto the system they inherited. In 2021, the result is an antiquated, ossified process that is unnecessarily time consuming, allows for significant corporate influence at all stages, and imposes analytical requirements that emphasize quantified cost-benefit analysis over other reasonable analyses. This system is not a neutral framework, but instead is one that works against progressive ideals. Here are three steps the Biden administration can take to ensure the regulatory process can effectively implement policies that protect our air and water, workplaces, and the economy.

Reform OIRA To Help Agencies, Not Micromanage Them

Two of the Office of Information and Regulatory Affairs’ (OIRA) most important functions are to ensure proposed regulations’ analyses adhere to quantified cost-benefit standards and to facilitate an interagency review process which allows agencies to provide comments to each other. Although these responsibilities are intended to create better regulatory outcomes, OIRA’s efforts in these areas have had the effect of weakening and delaying regulations.

Recently, OIRA delayed publication of the Centers for Disease Control’s COVID-19 guidance for weeks, sending it to officials with “no public health or scientific expertise,” and publishing a final version over the agency’s objections and in contradiction with established science.  This is not uncommon. For the most consequential of rules, the interagency review process can postpone a rule’s enactment by months or years, preventing those who’d benefit from a rule from reaping its benefits during that time. More than 20% of rules reviewed in calendar year 2019 (99 of 475) were delayed by more than 120 days, and the longest was delayed by 420 days. At a time when America is facing immense challenges, agencies must be able to regulate more quickly than this process permits.

One reason for this delay is that agencies can frequently take weeks or months to return comments, prioritizing their own regulatory efforts over those of other agencies. To counteract this, OIRA must prioritize a robust and efficient interagency review process and dedicate additional resources to keeping on top of agencies to ensure they provide comments in an expeditious manner.

OIRA also must ensure that the views of structurally marginalized communities are heard by rule-writing agencies. Frequently, these impacted communities lack the institutional capacity to respond to Federal Register notices and fail to have their perspectives considered by agencies. OIRA should require agencies to follow best practices and conduct targeted outreach to representatives of underrepresented communities prior to submitting rules for review. OIRA could also conduct its own targeted outreach prior to approving any rule for publication to ensure that their views have been adequately considered before a rule is issued.

Additionally, OIRA should create an Office of Regulatory Innovation (ORI) to work with agencies to develop new regulatory policies that implement the president’s priorities. From its perch as a government-wide clearinghouse for regulations, OIRA is ideally situated to understand the president’s policy goals and translate them into regulation. For example, the incoming Biden administration, dedicated to addressing climate change, could use ORI to develop inter-agency policies to limit greenhouse gas emissions, especially in situations where an agency has not previously regulated to address that concern and lacks the institutional capacity to address climate change quickly and effectively. ORI could proactively pitch policies to agency political and policymaking staff and work to develop implementation strategies, or could reactively propose changes to regulations as they are submitted for review to further implement the president’s agenda. Although these functions are complimentary to OIRA’s regulatory review efforts, they are different enough that they should be assigned to employees other than the desk officers that review regulations and facilitate the interagency review process. OIRA’s staff should be expanded to accommodate ORI as well, from anywhere between doubling or even tripling its size.

OIRA must be reformed so that its efforts help, rather than harm, agencies’ regulatory efforts and the public.

Use All Available Policymaking Avenues

Agencies tend to use the notice-and-comment, or informal, rulemaking process to enact policy, but they are not required to do so: Informal rulemaking is but one procedural option amongst many that agencies may use to articulate policy, and the others may be much quicker. Rather than relying almost solely on informal adjudication, agency officials should examine their full range of authorities and adopt the procedures best suited for the situation.

Agency officials should consider using adjudications to interpret current law in more progressive manners. With some limitations, agencies are permitted to give force to new interpretations of statutes and regulations, akin to the development of common law by the courts. Although policymaking in this manner is not appropriate in every situation, agencies may find it an effective way to move policy more quickly than by rulemaking, requiring fewer procedural steps and opportunities for delay than the ossified rulemaking process.

Additionally, agencies should make use of enforcement discretion. Enforcement offices cannot investigate or prosecute every allegation of wrongdoing, and may therefore set priorities that offer certainty to the public as to the probability that a particular action will be prosecuted. Agencies may, for example, issue non-binding “no-action letters” which tell the public that staff will not recommend enforcement actions for a particular set of facts and circumstances, or may declare prosecution of specific cases as “low priority.” The Obama Administration took the latter course with DACA, and the policy was nearly as effective as a rulemaking—the Supreme Court declared that the Trump Administration could not repeal DACA without sufficient analysis.

Ensure Economic Analyses Capture Relevant Factors

Cost-benefit analysis (CBA) is an exercise intended to assist agencies in evaluating the merits of regulations by understanding the costs that would be placed on regulated parties and the benefits that would flow to the public. However, agencies frequently conduct CBA in ways that are biased against progressive values while simultaneously being overly formulaic; CBA frequently ceases to be a beneficial analytical tool.

When conducting analyses, agencies should consider regulatory impacts that cannot be or are not easily quantified. Quantification has the benefit of permitting agencies to easily compare two numbers, but allows for significant corporate influence in ways that individuals and good government groups cannot possibly match. Wealthy corporations are most likely to have data relevant to a given rulemaking than structurally-marginalized communities likely to benefit from the rule. Corporations therefore have the opportunity to provide data to regulators or withhold it, depending on their interests, and may also sway the process by hiring so-called experts to produce analyses of every potential cost of proposed regulations while regulatory beneficiaries face innumerable challenges in countering such claims. Quantification also encourages agencies to place an emphasis on easily-quantifiable impacts, rather than on those that are more diffuse and harder or impossible to quantify. In one instance, a Food and Drug Administration rule on e-cigarettes was weakened because vape shops would lose revenue while the data on whether millions of young adults would become addicted was not sufficiently clear. Agencies should consider quantification as one method of analysis to be used in conjunction with others—such as whether regulations promote values such as equality, equity, and fairness.

Agencies should also analyze regulations in relation to specific items in President Biden’s agenda. The administration could require all agencies to ensure that every rule promotes competitive markets, for example, even if particular agencies are not traditionally tasked with achieving that priority. For example, concentration in the pharmacy market has resulted in significant patient harms. Although they are not considered antitrust regulators, the Department of Health and Human Services and its subcomponents could address this competition issue via their public health regulations. Similarly, all agencies could be required to ensure that their regulations decrease economic inequality or reduce racial disparities.

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President Biden faces an unprecedented need to reshape the regulatory process and must not simply return to the pre-Trump status quo. Those rules allowed regulated entities to use regulatory processes to escape scrutiny and failed those reliant on government regulation to protect their health, safety, and welfare. Especially now, in the midst of the COVID-19 pandemic and unacceptably high levels of unemployment, the American public deserves a government that follows science, ensures the participation of previously excluded communities, and emphasizes equity when regulating, not just quantified costs and benefits.

There are many opportunities for the Biden administration to reform the regulatory process. The ones described here would ensure that the government effectuates policy quickly, effectively, and in manners that emphasize progressive values.