We Need to Get Back to Work

by Rena Steinzor

May 13, 2016

Originally published on RegBlog by CPR Member Scholar Rena Steinzor.

Rulemaking has slowed to a crawl throughout the executive branch. If an agency does not have a statutory mandate to undertake such a brutal and resource-intensive process, the choice to accomplish its mission through any other means will be tempting. Of course, if the policy issues are controversial, no pathway to their redress—rule, adjudication, guidance, or bully pulpit—will be problem-free. The opposition party made clear, almost as soon as President Barack Obama was elected, that over-regulation would remain among its most shrill and pervasive battle cries.

Professor Tom McGarity, my friend and colleague at the Center for Progressive Reform and a gifted commentator on these trends, calls the new reality surrounding the rulemaking process a “blood sport administrative law.” By this he means that industry opponents of new rules have broadened the arena of conflict to include early and constant appeals to Congress and the courts, raising the stakes and making the costs quite high for any constituency that wants to prevail in rulemaking battles. Not coincidentally, this blood-sport approach edges public interest groups to the sidelines.

But my assignment here is not to lament the gridlock that dominates the present; it is to forecast the future. When I asked Professor Cary Coglianese, RegBlog’s faculty advisor, how I might frame my predictions of what will happen to the administrative state over the next five years, he suggested that I channel a Democratic presidential candidate. He nominated Hillary Clinton. But I decided that choice would be less interesting—and less fun—than channeling her primary opponent, U.S. Senator Bernie Sanders (D-Vt.).

If I were advising a President Sanders about the revival of the administrative state, I would urge him to adopt four goals.

His first goal should be to accomplish, with the persistence and creativity that only a President can offer, significant action on the worst problems now under the aegis of the executive branch. I would urge him to choose climate change, the most pressing problem that faces the planet and its inhabitants. A President Sanders should focus on climate change all the time, educating the public on its real ramifications, not just for people in the next several hundred years but for our children and their children. As a President Sanders mounts his virtual bully pulpit, I would urge him to emphasize that destructive climate change is coming much faster than we think. If we fail to take effective global action very soon, great suffering throughout the world and in this country will ensue. Because it is inevitable that humankind will be forced to take drastic measures, even if we get to them very late in the day, America must take the lead in the development of technology to address the problem. President Sanders needs to be prepared to sacrifice big political chips to make progress not only on reducing America’s greenhouse gas emissions but with respect to the global agreements essential to averting disaster.

The second goal that I would recommend to President Sanders would be to adopt practices designed to maintain the stability of the administrative state. Unless agencies are well-fed, well-rested, and secure in the understanding that the President supports what they do, other vital agenda items will be much more difficult to accomplish. The key to achieving this goal is to reconstitute the Cabinet as the main source of advice to the President. The dramatic increase in White House staff and power is not good for government because it politicizes decision-making that is supposed to be based on science and technical expertise. One of my favorite books is Duty: Memoirs of a Secretary at War by former U.S. Department of Defense Secretary Robert Gates. The book recounts his frustrations when he was second-guessed by White House staff over decisions that should be left to career soldiers and their civilian supervisor. You know that if Gates, an extraordinarily talented public servant in charge of an important and powerful department, could not win autonomy to conduct daily business, the heads of weaker agencies have no chance.

Third, I would urge President Sanders to continue speaking truth to power by insisting that Congress provide adequate funding to the nation’s regulators. With respect to the most controversial aspects of the administrative state, especially the work of agencies assigned to intervene in the workplace to ensure worker safety and to protect public health, Presidents are too often tempted to slink around, hoping against hope that nothing goes awry on their watch. The possibilities for what could go wrong seem quite alarming to me. We continue to experience industrial accidents in the highly hazardous industries that remain in the United States. Furthermore, food and drug contamination poses grave threats to our society. About 80 percent of the components of the drugs we take are manufactured abroad, and an estimated 20 percent of our daily diet is imported. Regulatory systems in the countries that make these products are far weaker than we should accept. Yet the U.S. Food and Drug Administration is expected to march on with funding gaps that sabotage its effectiveness.

Finally, President Sanders must come to grips with new challenges that existing statutes authorizing agency action barely address. Imports are one such priority. For those of you concerned about that subject, I refer you to a book edited by Professor Coglianese, Adam Finkel, and David Zaring on the subject a few years ago that could be used to organize a presidential task force committed to action. Other challenges include the development of relatively clean energy, the protection of critical infrastructure from ever-present cybersecurity threats, and the need to counteract the impact of global competition on safety culture. If we understood better how businesses are organized and what incentives confront managers, we would be a lot more capable of regulating effectively.

What, then, do we need in the next five years to improve regulation? We need to get back to work. We need to give government agencies the tools and resources they need to focus on protecting the public from the ravages of climate change and from the many other existing and emerging risks created by business activity.

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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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