Senate Continues Blazing Ahead with Judicial Nominations Hearings

After holding two unprecedented hearings over the objections of the Democrats during the most recent Senate recess, the Senate Judiciary Committee will hold a hearing on Tuesday, November 13. The Senate Judiciary Committee will hear from five nominees: Paul Matey (3d Cir, N.J.), J.P. Boulee (N.D. Ga), James D. Cain (W.D. La.), Damon Leichty (N.D. Ind.), and J. Nicholas Ranjan (W.D. Pa.).

The Committee will also hold what we're referring to as a "Monster Markup" -- an Executive Business Meeting on November 15, where they will consider 15 judicial nominees who are waiting to be reported out of Committee.

The current Senate Judiciary Chairman, Senator Chuck Grassley, has repeatedly ignored home-state Senator consent and held hearings for nominees who are lacking at least one blue slip. This is just one of the five ways Senate leadership and the White House are bending the norms and violating the usual processes for vetting candidates. To learn more about the norms being broken in the partisan attempt to capture the courts, click here.

Legal Responses to Regulatory Capture

Under President Donald Trump, federal agencies are showing ever-increasing signs of regulatory capture. The Environmental Protection Agency (EPA), under former Administrator Scott Pruitt and Acting Administrator Andrew Wheeler, has been a poster child for an agency captured by a well-connected regulated industry.  At EPA, it’s the fossil fuel industry – but industry and their lobbyists have infiltrated agencies across the federal government.  Courts applying administrative law are now the terrain upon which the battle to protect the public interest must be fought, and administrative law can give us the tools to win.

Administrative law is not designed to shield the regulatory process from all political and ideological considerations, but it does require process that conforms to basic rule-of-law requirements, and decisions with a sound evidentiary basis.  Regulators do not have carte blanche to promulgate rules that are entirely unsupported by relevant scientific, technical, and economic expertise, just because a powerful industry says so.

President Trump’s EPA is busily trying to rescind and replace the Clean Power Plan, freeze fuel economy and greenhouse gas emissions standards for automobiles, and limit the types of scientific studies that can be used in rulemaking – all projects at the top of the fossil fuel industry’s wish list.  For decades, the fossil fuel industry has propped up a Potemkin village of trade associations, think tanks, and other front groups that churn out biased, self-serving studies to lend a veneer of credibility to industry’s self-interest; long-time industry operatives from that apparatus now reside at EPA headquarters.  Industry has captured this regulator.

A recent article in the American Journal of Public Health described EPA’s many signs of regulatory capture.[1]  Pruitt’s political career was bankrolled by the oil & gas industry.  Wheeler was a lobbyist for the coal industry.  Most of EPA’s political staff is closely tied to the fossil fuel industry, or to elected officials with close industry ties.  EPA restructured its scientific advisory boards to marginalize independent researchers and allow industry lobbyists greater influence.  The article found “a decisive shift to the overt and systematic influence of regulated industries” at EPA.

EPA is not alone.  Secretary of Education Betsy DeVos has surrounded herself with former employees of for-profit colleges, so it should come as no surprise that the Department of Education proposed rolling back rules that penalized for-profit colleges whose graduates’ meager average earnings make it impossible for them to repay student loans.  Office of Management and Budget Director Mick Mulvaney, who famously stated that as a congressman he wouldn’t meet with lobbyists if they didn’t give him money, is also running the Consumer Financial Protection Bureau, where he has sided with the payday lending industry against a rule designed to avoid trapping low-income lenders in endless spirals of debt.  There is no shortage of Trump agency rulemakings that can and should be challenged on grounds of industry capture.

It begins with presenting evidence and argument that the agency has been captured.  Courts have, in some cases, applied a stricter degree of scrutiny to administrative decisions when they see the danger signals of industry capture.  In Greater Boston Television Corp. v. FCC, the D.C. Circuit Court of Appeals wrote that judicial intervention in regulatory decisions was appropriate when “the court becomes aware, especially from a combination of danger signals, that the agency has not really taken a ‘hard look’ at the salient problems and has not genuinely engaged in reasoned decision making.”  The “danger signals” that appellate courts have found to trigger “hard look” review are all signs of regulatory capture, such as improper contacts between a company executive and the regulator,[2] a demonstration of undue bias by the regulator towards private interests,[3] or an abrupt shift in policy.[4]

Additionally, courts have found that it is appropriate to more closely scrutinize regulatory decisions that constitute an abrupt change in course.  If an agency makes such a regulatory U-turn, it must “provide a more detailed justification than would suffice for a new policy […] when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy. […]  It would be arbitrary and capricious to ignore such matters.”[5]  “An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past.”[6]

“Hard look” review is increasingly relevant when people like Scott Pruitt and Andrew Wheeler run an agency like EPA.  Danger signals flash everywhere:  the former administrator had received campaign donations from regulated industries and their outside spending groups; staff previously worked for or represented regulated industries; top officials held frequent meetings with regulated industries; and EPA took official actions in direct response to requests from regulated industries.  Make your case; point out these danger signals in the administrative record and ask courts to take a “hard look” at the agency and its decision.

Of course, don’t forget the basics.  A regulator “must examine the relevant data and articulate a satisfactory explanation for its action.”[7]  Decisions have to be based on “substantial evidence,” not supposition or spin.  A decision is thrown out if it is “arbitrary or capricious.”  Those interested in a rulemaking “have a right to a fair and open proceeding; that right includes access to an impartial decisionmaker.” [8]  A regulator should be disqualified from a rulemaking “when there has been a clear and convincing showing that the [regulator] has an unalterably closed mind on matters critical to the disposition of the proceeding.”[9] Close review of the evidentiary record, and of the credentials and bias of the experts, will often make your challenge successful.  Where FOIA or other requests can expose agency bias, communications with interested parties, and procedural mischief, these discoveries can amplify your argument.

Another legal line of attack that practitioners should explore is non-delegation doctrine.  In Association of American Railroads v. USDOT, the court held that agencies may not delegate rulemaking authority to private interests.  The delegation at issue in that case was overt, but the non-delegation doctrine should equally apply to covert delegations of rulemaking authority.  There is no substantive difference between an agency telling a company or industry to write a rule for it and an agency telling a company or industry that it will write whatever rule the company or industry wants.

Administrative law is facing a test during the Trump administration.  Usually, courts give significant deference to regulators who are presumed to have scientific and technical expertise that Congress and the courts lack.  But challengers can attack that deference when the agency decision is the product not of expertise, but of industry-generated talking points laundered through a captured administrative process.

As a United States Senator, I am confronted on an almost daily basis by the overpowering influence of special interests in Congress and in the executive agencies we oversee.  When industry co-opts its regulator, it falls to the courts, and the lawyers who challenge agency decisions, to protect the public interest and the rule of law.  Courts may be our theoretically apolitical branch of government, but that does not mean they should be blind to the special interest influences distorting government actions that come before them.  Traditional notions of judicial deference to agency decision-making may have to be reversed where there is evidence of regulatory capture, in order to protect rule of law from private influence.  We unfortunately live in a time of widespread regulatory capture.  We should not pretend otherwise.  We should fight hard to protect fact-based, expert, dispassionate government decision-making.

Sheldon Whitehouse is the United States Senator from Rhode Island.  A more detailed look at his views on regulatory capture and the administrative process can be found in his comment letter on EPA’s proposed rule to replace the Clean Power Plan, available here.  

 

[1] Lindsey Dillon, et al., “The Environmental Protection Agency in the Early Trump Administration: Prelude to Regulatory Capture,” American Journal of Public Health (April 2018), https://ajph.aphapublications.org/doi/10.2105/AJPH.2018.304360

[2] Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970)

[3] National Resources Defense Council v. SEC, 606 F.2d 1031 (D.C. Cir. 1979)

[4] United Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983)

[5] FCC v. Fox Television Stations, 566 U.S. 502, 515 – 16 (2009)

[6] Id. at 537 (Kennedy, J., concurring).

[7] Motor Vehicle Manufacturers Assn. v. State Farm Mutual Automobile Ins. Co., 463 US 29, 43 (1983) quoting Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168 (1962).

[8] Association of National Advertisers v. FTC, 627 F.2d 1151, 1174 (D.C. Cir. 1979); see also Lead Industries Association v. EPA, 647 F.2d 1130 (D.C. Cir. 1980)

[9] Ass’n of Nat’l Advertisers, Inc., 627 F.2d at 1170.

Is This What a White Nationalist U.S. Immigration Policy Looks Like?

President Trump recently proclaimed himself to be a nationalist. Multiple immigration policies were announced shortly thereafter. On the campaign trail and since his election, President Trump has announced controversial immigration policies in rapid succession, one after the other. It is tempting to look at each immigration policy individually, standing alone. Doing so risks missing the bigger picture: each new immigration proposal can’t be viewed in isolation and can’t be evaluated on its own merits under the law in isolation. Instead, U.S. immigration policy must now be examined holistically. Without the frame of white nationalism, we ask: Is the immigration policy constitutional? Is it consistent with the law? With the frame of white nationalism, these questions must be paired with another question: Is the immigration policy ideologically driven in support of racial hierarchy?

After he announced he was a nationalist, he threatened to end birthright citizenship. He threatened to send as many as 15,000 military troops to the southern border. Currently, it has been reported that 2,100 members of the National Guard and 5,200 active duty service members could join the the National Guard. He threatened to seal the border if necessary to block admission of the "caravan." The caravan, originating in Honduras, is a collection of thousands of migrants currently traveling primarily by foot through Mexico. In a northward march toward the U.S.-Mexico border, many of the migrants have stated that they are hoping to seek asylum in the U.S. Some migrants have explained they fear persecution and death in their own countries.

RELATED: Listen to our discussion of the legal implications of President Trump's immigration policies.

The administration’s immigration policy can and should be contextualized through a white nationalist frame. “America First” was a slogan first introduced by isolationists and nationalists protesting U.S. entry into WWII. Charles Lindbergh, a leading voice for the America First Committee, publicly expressed Nazi sympathies. By resurrecting “America First,” and interweaving it with the backward-facing “Again” in the “Make America Great Again” slogan, President Trump resets the clock on white nationalist rhetoric by almost a century.

President Trump referred to the caravan as an “invasion.” Shortly thereafter, the deadliest attack on Jews in the U.S. occurred with the Tree of Life Synagogue shooting in Pittsburgh that left 11 dead. Six days before the shooting, suspect Robert Bowers, charged with the synagogue shooting, noted on social media: “I have noticed a change in people saying, ‘illegals’ that now say ‘invaders’. I like this.” Bowers also shared on social media that a Jewish refugee advocacy group was assisting the caravan and described this effort as “evil.” After the shooting, a collection of over 35,000 individuals signed an open letter to President Trump, asking him to denounce white nationalism.

Since taking office, through policies such as promulgating the Muslim Ban/Travel Ban; rescinding Deferred Action for Childhood Arrivals (DACA); revising asylum guidelines; reducing refugee admission quotas to historical lows; ending Temporary Protected Status (TPS); promoting the “Zero Tolerance Policy” and family separation, including the detention of children and babies separated from their migrant parents; mass trials to enforce deportation; restricting health care access to immigrants in detention; threatening a government shutdown unless the “Wall” is erected; social media surveillance of noncitizens and naturalized U.S. citizens; extreme vetting; the public charge rule, denying green cards and temporary visas to those who might receive certain government benefits; and other anti-immigrant policies, the administration also resets the civil rights clock back by over a century. The recent calls for the end to birthright citizenship, militarization of the border and shutting down the border, combined with other immigration policies, are consistent with a white nationalist agenda.

Many of the administration’s immigration policies have been challenged in the federal courts. An attempt to end birthright citizenship would be challenged as unconstitutional under the Fourteenth Amendment. An attempt to militarize the border could be challenged as violating the Posse Comitatus Act, for example, which prohibits the use of the U.S. military for domestic law enforcement. An attempt to seal the border could be challenged as an overreach of executive authority, as such an action, arguably, would be contrary to immigration laws established by Congress. Such action may also be found to be in violation of Due Process and international treaties that work to protect the rights of asylum seekers. Even if those challenging these immigration policies prevail in federal court, the ideology of racism still needs to be confronted on the political stage and in the court of public opinion.

The Real War on the Courts is Happening at the State Level

Patrick McGinley is the Charles H. Haden II Professor of Law at West Virginia University. David Lyle is senior counsel and director of the state courts project at the American Constitution Society.

This article was originally posted in the Washington Post.

"Republican politicians at the state level, on the other hand, have had more courage, attempting in multiple states to impose their will on their supreme courts. This is a dangerous moment for our country. Attacks on judges and courts pose a real and ongoing threat to judicial independence and the rule of law."

The Power of Public Interest: Corporate Accountability in the 21st Century

On November 9, 2018, the American University Washington College of Law chapter of the American Constitution Society will be hosting a symposium on corporate accountability and consumer protection. Ralph Nader, who is a dedicated advocate for social change and consumer protection, will be delivering the keynote address.

Register here: https://www.wcl.american.edu/secle/registration

This event will focus on consumer protection and corporate accountability issues from the days in which Ralph Nader and the Nader Raiders did some of their most influential work, as well as the modern iterations of these issues. Next, the event will discuss the different careers law students might pursue in this field, whether that be working in a non-profit, running for office, working in corporate compliance, working in a state attorney general’s office, or otherwise.

Background on the need for corporate accountability and consumer protection

The following are just some of the infinite ways in which corporations have leveraged their positions for their own financial benefit without regard to employees, consumers, or individuals who share the communities in which these companies conduct business:

  • The top 1 percent owns about 40 percent of the country’s wealth, and those who run corporations are among the wealthiest individuals in the world.[1]
  • Despite inflation, wages have remained largely stagnant for the last 40 years.[2]
  • Corporations are committing abuses and human rights violations that destroy our environment despite the devastating impacts.[3]
  • The Consumer Financial Protection Bureau, which has assisted citizens facing predatory lending practices following the 2008 market crash, is under attack.[4]
  • Corporate tax cuts are exacerbating income inequality.[5]
  • Students cannot afford the debt they are left with after pursuing their education.[6]
  • The health care industry continues to profit from its exorbitant prices, leaving Americans unable to afford vital health care.[7]
  • Private prisons are turning a profit from incarceration and recidivism rates.[8]
  • Companies are violating our privacy by selling our information.[9]

Many of these topics uniquely affect people of color, individuals in poverty, and other marginalized communities to a greater degree. Despite these blatant issues and their effects on marginalized communities, the fight for consumer protection and corporate accountability has been one of diminished focus among the public interest community in recent years.

Although I can only speculate as to why, I believe the reason is because the issue seems so daunting and complex that we focus on the temporary fixes—the issues that we can fix personally. The media, legal community, and society alike may find the issue difficult to frame because it is so sweeping, or they may find it uninteresting because it is so commonplace and expected.

However, in failing to emphasize corporate accountability, we fail to address the root of so many of this country’s problems and perpetuate a status quo that prevents the success and equality of all Americans. We are all just doing patchwork and remain distracted from the larger problem—the common denominator in all of our woes.

It is my hope that we can break down these issues to demonstrate how we can fix them while simultaneously exhibiting their expansive reach. My chapter would like to reinvigorate a passion for these issues by highlighting their importance in our lives and the lives of our present, former, or future clients. Although not every corporation is a bad actor, it is important that we work together to hold them accountable when they do abuse their power.

We look forward to this discussion, as well as learning how we can continue to hold corporations accountable.

[1] Christopher Ingraham, The Richest 1 Percent Now Owns More of the Country’s Wealth than at Any Time in the Past 50 Years, Wash. Post (Dec. 6, 2017); Matt Rocheleau, 8 Rich people Own as Much Wealth as Half the World, Boston Globe (Jan. 18, 2017), https://www.bostonglobe.com/metro/2017/01/18/rich-people-own-much-money-half-world-report-says/y6az3Wtasd5TIf9Q6k3I4K/story.html.

[2] Drew Desilver, For Most U.S. Workers, Real Wages Have Barely Budged for Decades, Pew Research Ctr. (Aug. 7, 2018), http://www.pewresearch.org/fact-tank/2018/08/07/for-most-us-workers-real-wages-have-barely-budged-for-decades/.

[3] See generally Greenpeace Int’l: Justice for People and Planet: Ending the Age of Corporate Capture, Collusion and Impunity (2018).

[4] Brianne Gorod, Mick Mulvaney’s Assault on Consumer Finances and the CFPB is Illegal as Well as Wrong, USA Today (Apri.11, 2018, 6:00 AM), https://www.usatoday.com/story/opinion/2018/04/11/not-only-mulvaney-illegally-serving-cfpb-director-hes-tearing-bureau-apart-column/503761002/.

[5] Suresh Nallareddy et. al., Corporate Tax Cuts Increase Income Inequality, (Harv. Bus. Sch., Working Paper No. 18-101, 2018), https://www.hbs.edu/faculty/Publication%20Files/18-101%20Rouen%20Corporate%20Tax%20Cuts_0a4626be-774c-4b9a-8f96-d27e5f317aad.pdf

[6] Annie Nova, Despite the Economic Recovery, Student Debtors’ ‘Monster in the Closet’ Has Only Worsened, CNBC (Sept. 27, 2018, 3:12 PM), https://www.cnbc.com/2018/09/21/the-student-loan-bubble.html.

[7] Amanda Michelle Gomez, Half of Sick Americans Either Don’t Have or Can’t Afford Health Coverage, Think Progress (Aug. 20, 2018, 11:39 AM), https://thinkprogress.org/americans-uninsured-affordability-problems-health-coverage-5e357e236f19/.

[8] In the Public Interest, How Private Prison Companies Increase Recidivism 2 (2016), https://www.inthepublicinterest.org/wp-content/uploads/ITPI-Recidivism-ResearchBrief-June2016.pdf.

[9] Ed Lavandera & Jason Morris, Why Big Companies Buy, Sell Your Data, CNN (Aug. 23, 2012, 3:52 PM), https://www.cnn.com/2012/08/23/tech/web/big-data-acxiom/index.html.

The Trump Administration’s Orwellian SAFE Vehicles Rule

The public comment period closed Friday for the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule, the latest in the blizzard of regulatory rollbacks that have hollowed out the Environmental Protection Agency and left its environmental and public health mission in tatters.

The SAFE Vehicles Rule is not a new public health and safety program that requires automakers to produce safer cars for American families.  In fact, the SAFE Vehicles Rule does not impose any safety requirements at all.  Instead, the SAFE Vehicles Rule kills higher fuel economy standards for model years 2021-2025 that would have reduced carbon pollution in the transportation sector, the second largest source of greenhouse gas emissions in the United States.

As always, there is context here, much of it supplied by President Trump’s refusal to acknowledge the dangers of climate change and his dystopian zeal for undoing Obama-era environmental protection rules, despite their enormous public health and economic benefits.

In 2011, after the federal government’s bailout of the auto industry, the Obama administration reached a landmark agreement with 13 large automakers, including Ford, Chrysler, and GM, that dramatically increased fuel economy standards for model years 2017-2025.  The agreement required cars and light duty trucks to reach 54.5 miles per gallon in fuel efficiency by model year 2025 and set targets for production of electric cars and hybrids, subject to a mid-term review to determine whether the fuel standards were attainable for 2022-2025.

The Clean Air Act rules codifying the agreement were a win-win for the environment and the economy, boosting American efforts to address global climate change and slashing gasoline costs for consumers.  The auto industry also benefitted because more fuel-efficient vehicles and increased production of electric and hybrid cars meets consumer demand in global markets, where foreign car manufacturers are reinventing themselves to produce zero-emission electric vehicles.  In the waning days of the Obama administration, EPA and DoT determined that the more stringent standards were attainable and should remain in effect for 2022-2025.

Within weeks of his inauguration, however, President Trump proclaimed that he would consider lowering the fuel economy standards for 2022-2025 to save jobs.  EPA and DoT commenced a review of the standards in March 2017 and, to the surprise of no one, determined in April 2018 that the fuel economy standards were “not appropriate” and should be revised, resulting in the announcement of the SAFE Vehicles Rule in August 2018.

The SAFE Vehicles Rule would freeze fuel economy standards at 2020 levels or 37 miles per gallon, a cut of more than 30 percent from existing Clean Air Act requirements.  The rule also would curtail the industry targets for electric vehicles and hybrid cars.  The justification for scuttling higher fuel efficiency and lower carbon dioxide emissions that would help protect the planet from climate change?  Greenhouse gas emissions from American cars are a fraction of global emissions—so cutting those emissions won’t do much to limit global climate change—and more fuel-efficient cars are lighter, which would increase fatal car accidents.

If this defeatism and cynicism were not enough, the Trump administration also is picking a fight with California over a decades-old exemption under the Clean Air Act that allows California to set its own fuel economy standards.  Because of its unique air pollution problems, California began regulating air pollution in the 1960s, before the enactment of the Clean Air Act.  In the decades since, California has retained its ability to impose more stringent motor vehicle standards, a special status or “waiver” that Congress and the courts have long recognized.

The California waiver is unwieldy in the sense that it leads to two sets of motor vehicle emission rules, with 12 states and the District of Columbia following the California standards, and the rest of the country following the federal standards.  But the Trump administration is not taking on California out of concern for regulatory efficiency; the concern at EPA and DoT is that California is pushing the rest of the country into more assertive climate change mitigation and environmental protection policies.  It is remarkable temerity from an Administration that purports to prefer that states decide how much to protect the environment—unless, of course, states want to provide more environmental protection than what is required by a feckless EPA.

Nor is there any merit to the Administration’s claims that it must reverse the Obama-fuel efficiency standards because doing so will save American lives.  EPA and DoT insist that more fuel efficiency means lighter cars and therefore more fatalities when accidents occur.  They cite no empirical evidence to support this view, and there is no such trend in European countries where smaller (and lighter) cars are the norm.  Indeed, the studies that exist suggest that lighter vehicles have stronger components and fare better in crashes, reducing automobile fatalities.

EPA and DoT reported that they received more than 100,000 public comments ahead of the Friday deadline.  Perhaps most revealing were comments from GM and Honda, both of which opposed the Trump administration proposal.  “We know that we can do better” than the Trump administration proposal, one GM official stated.  “We know the industry can do better.”

Perhaps the Trump administration will pull back its reckless SAFE Vehicles Rule in the face of industry opposition and the public outcry generated by the proposed rule.  But don’t count on it.  President Trump may be undisciplined and unprincipled in nearly every other respect, but he retains a perverse, single-minded obsession with undoing as much as he can of the Obama administration’s laudable climate change and environmental protection legacy.

At last count, the Trump administration had proposed more than 80 environmental rollbacks, which may or may not provide any benefits for the deregulated industries but almost certainly will exact an enormous toll on the young, the elderly, and those with chronic health conditions.  Federal courts have rejected many of the Trump administration’s environmental rollbacks, and the lack of any rational basis for the SAFE Vehicles Rule may consign it to a similar fate, which would leave the more stringent 2021-2025 fuel standards in place.

In the meantime, however, President Trump’s environmental purge exacts enormous opportunity costs as we fight to preserve gains achieved by the last administration and fail to make continued progress even though scientists tell us that we have no more than two decades to prevent catastrophic climate change.  We would be far better served if EPA and DoT reversed course on the SAFE Vehicles Rule—and similarly pulled back when public comment ends this week on the Clean Energy Plan, which would protect dirty coal-fired power plants.  Our children and grandchildren deserve more from us, and their lives hang in the balance as we dither.