The Trump Administration Thinks It is Immune to Regulation of COVID-19 Safety and Health

The COVID crisis has caused millions of people to lose their jobs as businesses shuttered and we sheltered in place to prevent the spread of COVID. In March, Congress enacted the CARES Act, expanding unemployment benefits for workers to protect them from financial disaster and extending eligibility to gig economy workers who are classified as independent contractors.

Meanwhile, the Trump Administration has shown time and time again that it believes it is above the law, and the pandemic. The recent superspreader event at the White House is further evidence that the Administration should not be trusted to oversee the federal agency that oversees worker safety, the Occupational Safety and Health Administration (OSHA).

The rollback of rights and economic exploitation intersects with race discrimination and poverty, as millions of low-wage workers are people of color. The question facing these  vulnerable workers is whether OSHA will be there to protect them, when it has so far exercised minimal oversight over the industries where they are concentrated—food processing, prisons and nursing homes.

Sadly, the historical antecedents of these contemporary failures run deep. At the end of the Civil War, the 13th Amendment to the Constitution outlawed not only slavery but also involuntary servitude, including the indentured servitude of northern workers. Labor activists in the 19th and 20th centuries invoked the 13th Amendment when they advocated for regulations that would protect their right to organize, establish minimum wage and maximum hours, and protect them against dangerous working conditions. Civil rights leader Dr. Martin Luther King Jr. invoked the emancipation of slaves in his 1963 “I Have a Dream” speech as he condemned racial segregation and advocated for civil rights laws.

The activists who invoked the Constitution achieved many victories for racial justice and workers’ rights. However, in recent years low-wage workers have been increasingly subject to labor practices which employers have intentionally adopted to avoid protective regulations, like the OSH Act and the National Labor Relations Act of 1935 (“NLRA”) which protect the right of workers to raise their voices in opposition to unsafe work practices.

But these protective statutes do not apply to those who are not “employees.” In the gig economy, low-wage workers lack job security and must constantly search for new work. Most low-wage workers do not receive health insurance, pensions, or other benefits from their employers. The recent COVID crisis has exposed this reality and heightened the vulnerability of U.S. workers.

“Essential” workers such as medical workers, agricultural and food processing workers, and grocery store employees are particularly vulnerable to COVID exposure and infection. Now U.S. teachers are also being asked to risk their lives by returning to unsafe classrooms.

Disproportionately represented in frontline “essential services” jobs, racial minorities are also disproportionately likely to sicken and die of the disease. In her recent book, Caste, Isabel Wilkerson argues that our country perpetuates a racial caste system. According to Wilkerson, caste “is like a corporation that seeks to sustain itself at all costs.” The COVID crisis reflects this racial caste system, and workers of color are indeed paying the costs.

The growth of the COVID virus throughout the country is impeding economic recovery. There simply aren’t enough jobs out there for the unemployed to return to, and too many jobs that do exist are unsafe. Yet rather than protecting workers from disease, Republican lawmakers have repeatedly insisted that workers must return to work regardless of the risk. They have repeatedly argued that extending enhanced unemployment benefits disincentivizes workers from returning to their jobs.

As our businesses began to reopen in April and May, workers in many states were informed that if they failed to return to work out of fear of COVID infection, they would no longer be eligible for unemployment benefits. The federal government is doing nothing to ensure that those workers’ employers adopt safety measures to protect them from infection. Instead, Republican lawmakers wish to immunize those employers from liability so workers who contract COVID on the job have no recourse, thus removing any incentive for job safety. They are also using COVID as an excuse to attempt to water down other protections for workers, including anti-discrimination laws and measures protecting the rights of unionized workers.

Like any other workplace, the White House should not be a dangerous place to work for the many senior staffers and residential house staff that go there every day.  The President shows callous disregard toward the safety of those who work in the White House, but it is not surprising given the disregard the has shown for making all workplaces safe, by imploring businesses and schools to open without any plan for safety. These workers have a human right to workplace safety, and the right to have a functioning federal government that aims to protect their health.

The same people who invoke liberty against face masks and safety regulations would force workers to choose between risking their lives at work or homelessness and hunger. U.S. workers are entitled to the liberty to work in decent jobs without risking their lives.

Ruben J. Garcia is the Co-Director of the Workplace Law Program and Professor of Law at the William S. Boyd School of Law,  University of Nevada, Las Vegas. His publication “The Human Right to Workplace Safety in a Pandemic” is forthcoming in the Washington University Journal of Law and Policy.

Rebecca E. Zietlow is the Charles W. Fornoff Professor of Law and Values at The University of Toledo College of Law. Her new publication “The New Peonage: Liberty and Precarity for Workers in the Gig Economy” is forthcoming in the Wake Forest Law Review.

Consumer Financial Protection Bureau Leaders Should Focus on Racial and Economic Inequality

This blog is cross-posted in the Economic Policy Institute's Working Economics Blog.

The Consumer Financial Protection Bureau (CFPB) should explicitly re-center its antidiscrimination mandate and address itself squarely to fostering racial and economic equity.  

By doing this, CFPB leadership could realize the full Dodd-Frank Act mandate to listen and be responsive to traditionally underserved communities and consumers.   

The agency needs to center the voices of marginalized communities as a necessary adjunct to promoting accountability under the statute.  The recognition that racial and economic justice are linked and that the pandemic is amplifying and embedding existing racial disparities, demand that we move beyond the generalities of the statutory language. Poor, rural, and immigrant communities, across racial differences, are all both underserved and poorly served by financial institutions. Black people in particular have always been excluded from the financial mainstream in this country. 

I am the founder of the Consumer Rights Regulatory Engagement and Advocacy Project (CRREA Project), and in our series on how the CFPB develops policy, and the inclusion of marginalized communities’ perspectives in that policy development, we’ve talked about the vision as set forth in Dodd-Frank,  the reality of how the statutory structure was implemented,  and changes to the organizational chart under the Trump administration.  

Here are our recommendations for how the agency can focus on racial and economic equity: 

Name It:  Identify Who is Served by the CFPB’s Mission 

As a first step to re-dedicating itself to its statutory mission, the CFPB should take a public stance acknowledging the centrality of consumers and traditionally underserved consumers.  We should put behind us the fight over the name of the CFPB, and whether “consumer” or “bureau” should come first.  Regardless of how often the statute put which one first, Congress was clearly focused on a certain set of concerns in the creation of the CFPB: consumer concerns and particularly those of traditionally underserved communities and consumers.  Consumer interests always come first in the Dodd-Frank Act, and so they should in how the CFPB understands its work and presents it to the public, whether through the website, the logo, or consumer education materials.   

The CFPB’s current strategic plan runs through 2022.  In developing the new strategic plan, the CFPB will have the opportunity to revisit its mission and vision statements, as well as the overall goals for its work, including specific measurable goals to be reported on annually.  The CFPB should seize this opportunity to center consumers, and a recognition of the CFPB’s special responsibility to traditionally underserved communities, in its work.   

Lay the Foundation: Regularize Public-Facing Research on Consumer Financial Products and Services and Traditionally Underserved Communities 

 The Office of Research is the first of the statutorily mandated Dodd-Frank Act offices.  Its mandate includes research and reports on risks to consumers, access to credit for traditionally underserved communities, and the experiences of traditionally underserved consumers.  It has both world-class economists and access to datasets covering all consumer financial markets, in many cases with only a month’s lag time.  The CFPB also has the authority, in section 1022(c)(4) of the Dodd-Frank Act, to collect additional information from financial institutions.   

Those resources should be focused on foundational work on the role of consumer financial products and services in traditionally underserved communities.  When is disclosure effective and for what risks?  How do consumers view tradeoffs in access to credit versus risk?  How can we untangle when the benefits of credit to traditionally underserved communities outweigh the costs of credit?  For example, the subprime lending boom of the early 2000s promoted access to credit and led directly to both the foreclosure crisis and the loss of more than a generation of wealth accumulation for Blacks and Latinx.  Credit can open doors and it can close them.   

The Office of Research has done significant work in all of these areas and more.  The CFPB should follow the precepts of the bipartisan Foundations for Evidence-Based Policymaking Act and adopt a public “learning agenda.”  A public research agenda, coupled with a regular cadence of reports on issues of importance to traditionally underserved communities, could bring public accountability to this aspect of the CFPB’s statutory mandate.  For example, researchers look to the CFPB for its annual release of the HMDA data and accompanying reports analyzing that year’s data.  Changes to the user interface for accessing the data have brought congressional scrutiny.  The CFPB could also expand its discussion in its semiannual report to Congress of the “significant problems faced by consumers in shopping for or obtaining consumer financial products or services.”  That discussion could explicitly center the experiences of marginalized communities in accessing credit on fair and non-discriminatory terms.    

Build It: Create a Structure that Reflects the Statute and Makes Visible Traditionally Underserved Communities 

The Trump-era CFPB organizational chart has moved four of the Dodd-Frank mandated offices and special units off the public-facing organizational chart.  The offices of community affairs, financial education, service members, and older Americans are now all housed inside the consumer education office, itself housed inside a new division of external affairs and consumer education.  Offices important enough for Congress to name are important enough to be visible on the public-facing organizational chart.  The public should know who leads those offices.    

Any new leadership of the CFPB will have to consider the location of the Office of Fair Lending.  The move of the fair lending office from its initial home in the same division with supervision and enforcement to the Director’s Front Office was meant to refocus the fair lending office’s work on “advocacy, coordination, and education” instead of supervision and enforcement.  We at CRREA Project believe that leaving the Office of Fair Lending in the Director’s Office could be used to signal its cross-cutting importance to the work of the CFPB, if coupled with the necessary formal and transparent decision rights and processes.   

For example, the CFPB could publicly commit to a formal role for the Office of Fair Lending in priority setting across the agency. The CFPB could update its written procedures related to decision making to embark on specific actions that would normally rise to the Director for final decision, such as authorizing specific enforcement actions.   Establishing formal and transparent decision rights and processes would provide accountability to Congress and the public.  Such actions could provide reassurance that fair lending was a central consideration in supervisory and enforcement actions without disclosing confidential internal CFPB deliberations.   

Other steps could include explicit roles for outreach connected to rulemakings to facilitate input from marginalized communities or a designated role for the statutory offices in providing input into policymaking.  Clarifying the role of the Community Advisory Board would assist both the CAB and staff in understanding the purpose and nature of their interactions.  Other agencies, such as the Environmental Protection Agency have, from time to time, published detailed guidance for staff and guidance for rulewriters about the agency’s policy decision processes.  This kind of work is foundational to consistent management across administrations and could contribute to the development of a culture and identity for the CFPB that lasts for generations. 

Conclusion 

Accountability to the underserved and poorly served consumers and communities the statute repeatedly calls out is critical.  Public-facing documents, like the strategic plan, a research agenda, or an organizational chart, afford one level of accountability.  They explain what the agency intends to do and offer a point of engagement for the public.  Future leadership should go further and embrace the statute’s emphasis on consumers and traditionally underserved consumers and communities to apply an explicit racial and economic equity lens to decision making across the agency.  Doing so would build a CFPB robust and resilient enough to serve the public well for the years to come.   

Diane Thompson is the founder of the Consumer Rights Regulatory Engagement and Advocacy Project. Previously she was Deputy Assistant Director and Acting Assistant Director of the Office of Regulations in the Consumer Financial Protection Bureau. 

RBG's Human Rights Legacy

As Justice Ginsburg blazed the trail for equal citizenship rights, she drew inspiration and analysis from comparative and human rights-based approaches to equality. This is a critical aspect of her legacy.

In 1946, at the age of 13, Justice Ginsburg appreciated the potential held by the creation of the United Nations just one year earlier.  In an editorial for her school newspaper, Highway Herald, eighth grader Ruth Bader lauded the UN Charter and its underlying principles, placing it in the pantheon of great documents including the Ten Commandments, the Magna Carta, the English Bill of Rights, and the U.S. Declaration of Independence.

As an aspiring scholar in 1961, she joined the Columbia Law School Project on International Procedure, headed by Professor Hans Smit. Ginsburg had just completed a two-year clerkship with Federal District Court judge Edmund Palmieri, so was certainly steeped in American rules of civil procedure. However, her assignment with Smits’ project would be to develop the study of Swedish civil procedure. She was paired with a Swedish judge, Anders Bruzelius, to complete the book-length work.

After spending some months learning Swedish, Ginsburg traveled to Lund University in southern Sweden to meet with her co-author, accompanied by her young daughter Jane. The book that Ginsburg and Bruzelius ultimately produced in 1965 was well-received, with at least one reviewer expressing surprise that a book on such a seemingly arcane topic was actually interesting.

The more momentous legacy of this trip, however, was its influence on Justice Ginsburg’s perspectives on both equality and comparative law. At the time of Justice Ginsburg’s visit, women made up 25 percent of Swedish law students, and the family-friendly social policies for which Sweden is known were rapidly expanding. Justice Ginsburg visited a Swedish court where the presiding judge was eight months pregnant, unthinkable in the United States. Looking back decades later, Justice Ginsburg credited her comparative law experience with “influencing my perspective on legal issues ever after.”

Her appreciation for comparative law was soon evident in her work. As a litigator, she famously cited to cases from the West German Constitutional Court in Reed v. Reed, the first Supreme Court case that she briefed. As a scholar, she looked to comprehensive income protections and pregnancy and childbirth benefits contained in International Labor Conventions as models for eradicating gender-based discrimination.

As a jurist, Justice Ginsburg explicitly embraced a human rights-based approach to equality. Upholding the University of Michigan Law School’s use of affirmative action in its admissions program in her concurrence in Grutter v. Bollinger, Justice Ginsburg cited to both the international Convention on the Elimination of All Forms of Racial Discrimination (CERD), which the U.S. ratified in 1994, and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which the U.S. has signed but not yet ratified. She noted that affirmative action measures are consistent with governments’ obligations under international human rights to enact temporary positive measures to guarantee the equal enjoyment of rights.

Justice Ginsburg’s embrace of international human rights in Grutter in 2003 was not a one-off. Rather, it reflected her deep thinking on the topic. In her 1999 Cardozo Lecture to the New York City Bar Association, Justice Ginsburg states clearly that the UDHR and human rights treaties influenced her thinking about constitutional guarantees of equality, including government’s affirmative obligations. She notes the ways in which affirmative action, in particular, is consistent with the UDHR’s embrace of civil and political rights alongside economic and social rights protections, and the UDHR’s holistic approach to equality. Affirmative action, she explains, is both “in harmony with” and “may draw force” from human rights principles, “in particular, from the prescriptions on equality coupled with provisions on economic and social well-being.”

Indeed, Justice Ginsburg spoke often and publicly of her appreciation for and approach to comparative law and human rights. In a 2004 speech at Columbia Law School, and again in a 2006 speech at the University of Pretoria, she discusses the ways in which the Supreme Court’s opinion in Brown v. Board of Education was influenced by the cruel hypocrisy of the United States’ engagement in World War II to fight against Nazi Germany while racial apartheid thrived within the U.S. She noted that Brown “both reflected and propelled the development of human rights protections internationally.” Justice Ginsburg states: “Brown and its forerunners, along with the movement for international human rights that came later, powerfully influenced the women’s rights litigation in which I was engaged in the 1970s.”

In a 2010 speech at the International Academy of Comparative Law, she again discusses how comparative studies “powerfully influenced” her work as a lawyer, a law teacher, and a judge, and she notes the value, firmly rooted in the American tradition, of courts consulting foreign and international legal sources when engaging in constitutional review to ensure the protection of rights.

In her Cardozo Lecture, Ginsburg states, in no uncertain terms, the relevance of comparative and international law:

In my view, comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world.

She later concurred with Israel’s Chief Justice Aharon Barak’s assessment that comparative law holds particular value in cases involving hate speech, privacy, abortion, the death penalty, and terrorism.

The human rights influence also appears embedded – if more subtly - in her writings and jurisprudence. For example, in an early article delving into gender and the constitution, she discusses the importance of positive government measures, including affirmative action and government support for child rearing, in realizing gender equality. In M.L.B. v. S.L.J., she engaged in an intersectional analysis to elide the traditional distinctions between due process and equal protection and recognize the impact of poverty on the realization of fundamental rights, holding that a state may not condition the opportunity to appeal termination of parental rights on payment for the trial court record. In United States v. Virginia, she did not merely rule that VMI  must admit women, but, seeking to make equality norms responsive to people’s lived realities, noted that the military college would need to make other changes as well, such as adopting policies to respect cadets’ privacy.

Justice Ginsburg was a champion for gender equality and equal citizenship rights, as reflected in opinions (both controlling and dissenting) addressing gender-based discrimination, reproductive rights, voting rights, and corporate campaign spending. She was not perfect. She had significant blind spots.

But her understanding of equality as grounded in human rights principles should be an enduring aspect of her legacy. Building on such a legacy would lead to more explicit recognition under constitutional law of the ways in which discrimination based on gender, race, and poverty intersect. It would remedy the current failure of constitutional doctrine to extend heightened scrutiny to claims of poverty-based discrimination, and it would extend protection under the 14th amendment to disparate impact claims of race and gender discrimination. It would recognize, too, governments’ affirmative obligations to ensure equality.

For example, rigorous application of human rights norms in the U.S. context would provide a framework for courts to recognize governments’ duty to ensure non-discriminatory access to quality comprehensive reproductive health care in order to secure women’s equality, a framework for protecting reproductive rights that Justice Ginsburg favored. It would likewise more fully elucidate how restrictions on access to abortion care, such as requiring people to travel long distances to a clinic and either make a return trip or stay overnight, have direct and particular impact on access to abortion care for people in marginalized communities, including people living in poverty, people of color, immigrants, and people with disabilities. Indeed, Justice Ginsburg’s concurrence in Whole Woman’s Health forcefully acknowledged the barriers that targeted restrictions on abortion providers place on people’s ability to access abortion care.

As a litigator and as a jurist, Justice Ginsburg was indeed a trailblazer. Her approach was to work methodically, case-by-case, within existing doctrine to make it more inclusive, with an ultimate result that was transformative. Building on her human rights legacy would likewise require deliberation and patience. What a powerful legacy that would be.

The Incapacitation of a President and the Twenty-Fifth Amendment: A Reader’s Guide

This post originally appeared in Just Security.

Read an explainer on the Reader's Guide.

The Twenty Fifth Amendment of the United States Constitution is an immensely consequential provision that has received remarkably little scholarly attention. Adopted in 1967, the 25th Amendment addresses what happens if the President of the United States is removed, dies, is incapacitated, or otherwise unable to fulfill the powers and duties of the presidency. To explain it, we offer The Twenty-Fifth Amendment to the United States Constitution: A Reader’s Guide, a document that provides guidance on critical interpretive and procedural questions regarding the 25th Amendment.

Section Four of the Amendment has drawn particular attention in the popular media and news commentary alike in recent months. This provision provides a strikingly compressed constitutional process whereby nine government officials could separate the President from his powers and duties, with the Vice President immediately becoming Acting President. If the President should contest this declaration of inability, the amendment requires both houses of Congress to assemble within 48 hours, and then (by a two-thirds vote of each body) to resolve the question of inability within three weeks. Depending on the vote, the President may resume his official duties, or the Vice President may continue to serve as Acting President.

In the more than 50 years since the Amendment’s ratification, Section 4 has never been invoked. There are no judicial or other authoritative opinions on its proper implementation. There is no historical practice to guide its operation. The Amendment’s requirements and implications have been misstated even by experienced legal commentators. As a result, uncertainty persists about such basic questions as

  • When can or should Section 4 be invoked?
  • Who can invoke it?
  • What does presidential “inability” mean?
  • What happens if the President contests the invocation of the Amendment?
  • What are the Vice President’s powers and duties as Acting President?
  • If the matter gets to Congress, how should the Amendment’s constitutional processes be implemented?
  • Is the Amendment’s operation justiciable?
  • And what would happen in the morning(s) after the Amendment is invoked?

Yet once triggered, the constitutional timetable is swift and inflexible. Critical national decisions would need to be made within weeks, employing a procedure that is poorly understood.

In an effort to remedy this uncertainty, the Rule of Law Clinic at Yale Law School is releasing an authoritative analysis of the Amendment and how it was intended to function. We have studied all available sources on the amendment and the intent underlying it. The Clinic examined the text, legislative history, critical academic commentary, and judicial analyses of the amendment, reviewed all significant past studies, and consulted closely with leading experts, including Professor John D. Feerick, past Dean of the Fordham University School of Law, a principal drafter of the 25th Amendment who continues to be its preeminent commentator.

The Clinic’s key findings included the following:

  • While the amendment’s framers generally contemplated Section 4’s employment in the case of the President’s mental or physical incapacitation, they also expressly disclaimed any intent to define “inability.” They purposefully set forth a flexible standard intentionally designed to apply to a wide variety of unforeseen emergencies. As a result, those deciding whether a President is “unable to discharge the powers and duties of his office” should focus on the overall effects of the inability—whether the totality of the circumstances suggests that inability prevents him from discharging the powers and duties of the presidency—rather than the specific characteristics of the inability itself.
  • The Clinic found a general consensus that while medical evidence may inform the inability determination, Congress and the amendment’s other actors must render its own judgment as to presidential inability.
  • The Clinic concluded that while the amendment is increasingly discussed in popular media, the United States government is unprepared for the unlikely event that Section 4 is triggered; most critically, there are no standing congressional procedures to be followed.
  • The Clinic also released an addendum to the Reader’s Guide that recommends a list of congressional actions that could be immediately taken to clarify Section 4’s constitutional process, and minimize Executive Branch and Congressional chaos surrounding the transition of power to the Vice President and the adjudication of the President’s inability. These proposals include clarifying committees of jurisdiction, adopting formal standing rules and procedures for deliberation, creating a standing advisory committee, passing laws establishing procedures for the transition of power, and passing a joint resolution affirming the interpretive conclusions in the Reader’s Guide.

Experts who have read the Guide believe that it provides invaluable and authoritative guidance on critical interpretive and procedural questions regarding the 25th Amendment. Were the issue of presidential inability ever to be contested, faithful adherence to the rule of law would require careful parsing of and conscientious adherence to the text, structure, history and practice of the Amendment.  The Guide seeks to do this in a way that is accessible and understandable. Even—perhaps especially—in a time of constitutional emergency, we hope that the Reader’s Guide will serve as a helpful constitutional resource to ensure that a critical provision of our Constitution is properly implemented in accordance with the Rule of Law.

Steering Towards Zero Emissions: Is California’s Ban of Gas-Powered Cars on a Collision Course with the Federal Government?

On September 23, California Governor Gavin Newsom announced an Executive Order that would, among other things, ban the sale of new internal combustion engine vehicles in California after 2035. The announcement sparked a flurry of reactions: Some environmental groups praised the order, while others said it didn’t go far enough, and petroleum and auto industry spokespeople questioned the availability of infrastructure to support the shift and argued that the move didn’t have widespread buy-in from stakeholders.

In short, the Governor’s order requires steps to reduce both supply of and demand for fossil fuels. The centerpiece of the order is its target that 100 percent of new in-state car sales will be zero-emission vehicles (“ZEVs”) by 2035, and that, for all operations where feasible, 100 percent of medium- and heavy-duty vehicles in the state will also be ZEVs by 2045. But beyond directing the California Air Resources Board (“CARB”) to adopt regulations effectuating these targets, the order recognizes that substantial new investment and regulation will be required to speed the state’s transition away from fossil fuels. To that end, it also directs state agencies to develop a ZEV market strategy; identify improvements to clean transportation, sustainable freight, and transit options, including support for ZEV infrastructure; update assessments of needed ZEV infrastructure; and take steps to transition away from fossil fuels by repurposing oil production facilities and expediting closure and remediation of oil extraction sites. Making progress towards these goals over the coming years will involve a significant amount of coordination spanning across state agencies and, likely, the legislature.

The order comes as California continues to fight a battle against the Trump administration’s September 2019 revocation of its Clean Air Act (“CAA”) waiver for vehicular greenhouse gas emissions standards and its ZEV mandate. (Full disclosure: Emmett Institute colleagues and I co-authored an amicus brief in the litigation on behalf of over 140 members of Congress, arguing that the agencies’ rule runs contrary to Congressional intent.) The Trump rule in question, dubbed “SAFE: Part I,” declared California’s standards preempted by the Energy Policy and Conservation Act’s (“EPCA”) mandate to set federal motor vehicle economy standards, and nixed California’s waiver both because of that purported preemption and because, allegedly, the waiver request did not meet the standards set forth in CAA Section 209.

A bit on both arguments: EPCA preempts states from adopting laws “related to” the regulation of fuel economy standards; NHTSA claims that California’s Advanced Clean Cars program, the subject of the waiver request at issue in the litigation, does just that. Turning to the CAA, Section 209 requires the EPA to grant California a waiver to implement vehicular emissions standards that are, on the aggregate, as stringent as federal standards—the agency can decline to do so only if it finds the standards are arbitrary and capricious; are not needed to meet extraordinary and compelling circumstances; and/or are inconsistent with technical and enforcement provisions of the CAA. The EPA says it can make these findings.

As I’ve written here before, both sets of arguments rest on questionable legal ground. More than one federal court has already rejected NHTSA’s EPCA argument—even the Supreme Court has agreed that EPCA does not preclude federal regulation of vehicular GHG emissions—and the statutory and legislative history is clear that Congress never intended EPCA to preempt emissions standards, even when those standards might have an impact on a vehicle’s fuel economy. And aside from the fact that there is no waiver revocation authority written into the CAA, California is owed considerable deference to its determination that it needs the Advanced Clean Cars program. Reams of evidence show that the program is needed not just to combat climate change, but to reduce the amount of smog and smog-forming pollutants in the state, conditions the EPA has historically recognized—and still acknowledges—as “extraordinary and compelling circumstances” necessitating a waiver.

While much of the order, including its infrastructure-related provisions and mandates to transition away from fossil fuel production, are unrelated to the waiver litigation (and are well within the state’s authority to regulate), the outcome of the waiver fight still looms large over Governor Newsom’s announcement. That’s because California has historically sought a waiver for its ZEV program, which requires an ever-increasing percentage of vehicles sold in California to have zero tailpipe emissions. Governor Newsom’s order directs CARB to adopt regulations requiring increasing volumes of ZEV sales until ZEVs represent 100 percent of all new vehicles sold in California by 2035, a framework similar to the existing ZEV program but with much more ambitious targets. If the new CARB regulations are structured this way, California is likely to require a waiver for them, and because the Trump administration has already demonstrated its hostility to the existing ZEV program, whether or not California receives one may turn on the outcome of the November election. But it shouldn’t.

First, any new ZEV mandate is necessary to meet “compelling and extraordinary circumstances,” whether you accept the overwhelming scientific consensus on climate change and the likelihood of unique and serious impacts to California as a result of it, or choose to adhere to the EPA’s current interpretation of the phase as referencing only local air pollution caused by criteria pollutants. In support of its Advanced Clean Cars program waiver request, and again in opposing revocation of the waiver, California has submitted ample scientific evidence demonstrating that the state stands to experience special and extreme harms as a result of climate change. Given California’s position as the fifth-largest economy in the world, an aggressive move toward ZEV adoption by the state would certainly influence vehicle markets elsewhere and would demonstrably reduce transportation sector emissions within and outside of California’s borders.

But it’s also important to recognize how critical a ZEV program is to winning the state’s long battle with smog. California initially adopted the ZEV mandate in 1990, in response to concerns about persistent smog pollution. Designed to be technology-forcing, the ZEV mandate was aimed at reducing concentrations of smog-forming criteria pollutants by encouraging a transition of the vehicle fleet to non-emissive cars. Over time, the fight against climate change became an added rationale for the program, but since its inception, the ZEV mandate has always been targeted at reducing the very pollutants EPA has historically recognized as the cause of California’s “extraordinary and compelling circumstances” requiring a waiver. That’s why the EPA has consistently throughout the years—including during a past Republican administration—granted waivers to California to update its ZEV program. A more aggressive ZEV mandate is even more important now, as California still struggles with some of the worst air pollution in the country (and worsening pollution in places like the San Joaquin Valley) and as climate change stands to exacerbate that pollution.

Nonetheless, in the event that Trump wins reelection, California should expect to face federal resistance as it seeks to move forward with these regulations. Of course, the courts may ultimately decide in California’s favor on the waiver, but a final decision in the litigation, assuming it proceeds, may still be years away. The state may consider alternative courses of action—for example, a straight ban of internal combustion engine vehicles with no emissions standards attached to it arguably would not require a waiver from the EPA—but even an alternative path is likely to face litigation, and a straight ban would lack the benefit of the steady ramp-up approach the Governor’s executive order implies. A policy as bold as this one is bound to be challenged, but California’s CAA authority to implement it should be clear; whether the federal government chooses to recognize that authority is another question.

Should a New Congress Use a Deeply Flawed Law to Repeal Trump Agency Rules?

The Congressional Review Act was Newt Gingrich’s Brainchild. It should be repealed.

The Congressional Review Act (CRA), part of Newt Gingrich’s “Contract With America”, slumbered for many years in obscurity. Then, in 2017, Congress dusted it off and used it to kill fifteen Obama administration regulations. I’m not the first to ask whether there should be payback if the White House and Senate change hands.

There are legitimate reasons for using the CRA. Doing so would allow for reversal of some of the Trump administration’s regulatory rollbacks without waiting for time-consuming litigation or cumbersome agency reconsideration. But the CRA is an ill-conceived law, and we should really aim at repealing it. One option might be to give legislators a choice: Agree to repeal the law, or watch as the CRA is wheeled into action.

What’s Wrong with the CRA?

When one administration issues an agency regulation (including repeal of a prior regulation), the new administration can start its own agency procedure to undo what the last administration did. That’s a lengthy process and invites litigation. The CRA provides a short cut.  Congress can disapprove the previous administration’s action. That immediately eliminates it. As applied to the Trump administration’s regulatory rollbacks, the effect of a CRA resolution would be to restore the situation prior to the Trump regulation. In other words, this would undo the rollback.

Here’s how the CRA works. Before major rules can go into effect, agencies must notify Congress, which then has a specified period of time in which to consider a joint resolution of disapproval. (In practice, this means that regulations in about the last six months of an outgoing administration can be reviewed). The law is basically limited to times when control of the White House flips, because otherwise the same President who was responsible for a regulation could veto the congressional resolution of disapproval. If a disapproval resolution becomes law, the CRA provides that a rule may not be issued in “substantially the same form” without additional statutory authorization.

The CRA has five serious design flaws.  Taken together, these make it more a threat to rational governance than a method for controlling bad regulations.  First, because Congress has a limited time to use the law and there’s a fast-track procedure, there is little opportunity for Congress to gather evidence or deliberate. There are no committee hearings and severely limited time for debate. Regulations that have taken months or years of thought, supported by voluminous evidence and analysis, are tossed out overnight with barely an explanation. Congress can only reject the entire regulation, not the portions it dislikes. This is surely not the way to conduct congressional oversight.

Second, the law is basically useless except when control of the White House flips and the new President also has control of Congress. Under those circumstances, use of the CRA is inevitably seen as partisan and therefore divisive.  Adding to political polarization is hardly something we need.

Third, the CRA creates the false impression that Congress is exercising real control over the administrative process.  As was true under both Obama and Trump, the most important regulations are unlikely to be subject to CRA reversals. Those are exactly the regulations most likely to be fast-tracked within the administrative process precisely to avoid issuing them late in an Administration when the CRA would be a risk.  What’s left are typically the second-tier regulations that the previous Administration left for the end. Only a few of those can be reviewed.  The reason is that the opposing party can insist on ten hours of floor debate for each one, and Senate floor time is a precious resource.

Fourth, given that only a small number of regulations can be reviewed, the selection is necessarily arbitrary. You can see this in the use of the CRA in 2017.  Republicans argue that regulations create large economic burdens for minimal public benefits. My study of the 2017 CRA resolutions shows the  targets didn’t generally have major regulatory costs (over $100 million per year). Instead, the rules selected for elimination were a grab bag. They included some rules impacting special interest groups (notably the oil industry), others impacting Republican constituencies like rural Westerners, and others that must have somehow caught the attention of Fox News or talk radio. As Professor Tom McGarrity has pointed out, many of these rules were not even especially controversial at the time they were proposed. They just happened to be convenient targets.

The final flaw in the CRA is the provision that prohibits an agency from proposing a substantially similar regulation after a rule is disapproved.  This provision seems to have been initially added to prevent agencies from doing an end-run by reissuing the essentially same rule all over again. It applies, however, even years in the future, when the need for a rule may have become obvious to everyone. The bigger problem is that no one really knows what the standard is.  Are only nearly identical new rules subject to the ban?  Or is it any new rule that tries to achieve a similar purpose?  Or is it any new rule at all dealing with the same topic?  No one knows.  No one even knows whether this ban is enforceable by the courts or only by Congress. The chilling effect on new regulation may be equivalent to repealing the agency’s authority, but without Congress ever having to stand up and take responsibility for the repeal.

In the end, the CRA is more useful for scoring partisan points than fixing regulatory policy. Regulations subject to CRA are often not especially important and chosen haphazardly. Even those regulations don’t get a fair hearing before they are axed. And axing them makes it risky for regulators to address the same problem again for years into the future, even though the statute requiring them to do so is still on the books.

What Should be Done?

It’s all very well, you may well be thinking, to say that the CRA should be repealed.  But it’s on the books and Republicans have felt free to use it before. Why should Democrats unilaterally disarm themselves?

That’s a fair point.  Although most of the worst regulatory rollbacks are deliberately timed to avoid possible CRA review by a new Congress, some will still fall within the CRA’s orbit.  Recent examples include efforts to limit environmental impact statements and to end limits on methane emissions by oil and gas companies. Pending rules that are likely to come down within the timeframe for CRA review, would shackle future regulation of dangerous pollutants and freeze air quality standards despite scientific evidence they urgently need tightening.

Although it would be nice to kill those efforts, using the CRA also has downsides. Using the CRA might hinder the government’s ability to issue future regulations.  How a court might interpret the CRA’s restriction on future regulations is completely unknown. The safest targets for CRA actions are rules like the ones on environmental impact statements and on future toxics regulation, where there’s no pressing need for new initiatives in the area anyway.  Another important problem with using the CRA is that it eats up time on the Senate floor when there may be more pressing business in the midst of a public health and economic crisis. In short, using the CRA isn’t risk free or costless.

Still, despite the imperfections of the CRA as a way of reversing policies, using it would admittedly allow at least some bad policies to be eliminated.  It would also be a morale boost for a new Congress. In any event, unless the filibuster is abolished, the CRA can only be repealed with bipartisan support, and there hasn’t been any interest in that.

In my view, the short-term benefits of using the CRA are outweighed by the public interest in eliminating it. A demand to repeal the law should be pressed by a new Congress, with any actual or threatened use of the CRA serving as leverage. That’s the reason for my suggestion that negotiators offer a choice between suffering the use of the CRA against rules they support or agreeing to its repeal. An alternative would be for the Democrats to use the CRA exactly as many times as the Republicans did, declare the two sides even, and suggest talks about repeal. I wouldn’t blame politicians for simply using the CRA for all it’s worth, without worrying about repeal. But to my mind, that would only legitimize a fatally flawed instrument of governance. Whether or not there are tactical reasons to make any use of the CRA next year, the ultimate goal should be total repeal.

For more information on how progressives should reform Administrative Law, read ACS’s Issue Brief Reforming “Regulatory Reform:” A Progressive Framework for Agency Rulemaking in the Public Interest by Professors Dan Farber, Lisa Heinzerling, and Peter Shane.