Act Two: Answering the Clear Mandate for Vigorous Oversight

by Matt Shudtz

November 08, 2018

For two years, President Trump has attempted to steer federal policy in ways that undercut core American values. His vision of government – to the extent one can divine a coherent vision – lacks compassion, fairness, a commitment to equal voice and opportunity, and concern for the long-term threats that families and communities cannot address on their own. Instead, the president has embarked on a campaign to remake the core institutions of our democracy in a new, authoritarian mold. And along the way, he has set an expectation for his administration that its agenda and his personal political and financial aspirations carry more weight than the rule of law.

Tuesday's midterms showed that Americans are tired of Congress rubber-stamping the president's actions and letting his mean-spirited rhetoric become normalized. The newly minted Democratic majority in the House of Representatives will be sworn in in early January with a mandate to push back.

To what end will Democrats pursue the vigorous oversight agenda that they have promised? Here's an idea: How about focusing on the future? The Trump administration has turned its back on children in alarming ways. Family separations at the Mexican border, efforts to eliminate or undercut the Affordable Care Act's protections for people with preexisting conditions, and tax cuts that drove calls for cuts in SNAP and WIC benefits – all of these kitchen-table issues resonate because they put our children at risk.

Many of the Trump administration's marquee regulatory rollbacks have garnered attention because they are obvious handouts to the extractive industries and developers who supported Trump when he was an unlikely candidate for president. But as interesting as it is to understand why the administration is pursuing this particular agenda, I'll hazard a guess that at least as many Americans want to better understand what the outcomes of the agenda might be. The administration has tried to define the evaluative frame as regulatory cost savings. Hence, the ballyhooed executive orders on regulatory budgets and costs and made-for-TV rollouts of repeals of a range of safeguards. This is the language of a certain subset of corporate America, but it is largely irrelevant to most Americans.

Regulatory costs are an abstract frame that is untethered to the lived experience of nearly all Americans. Submitting to that frame distracts from the very real and harmful consequences the broad assault on public safeguards will have on all of us. There is perhaps no better way to make these impacts concrete than by looking at how they will uniquely harm children. The proposal to dial back rules that increase cars' gas mileage, for instance, will lead to more children breathing asthma-inducing air pollution in urban and suburban areas. Same goes for changes to the way the Environmental Protection agency (EPA) reviews operations at coal- and gas-fired power plants through the Clean Air Act's "new source review" program. The technical details are complicated, but the end result is simple: Kids living near and downwind of power plants can expect to breathe more polluted air thanks to the Trump administration's policy choices.

With time, patience, and some technical know-how, the data that bear these effects out is there for the picking, thanks to the longstanding norms of administrative law that require executive branch agencies to carefully justify their regulatory actions and document their analysis (more on that in a second). Congressional investigators would do a great service to the American public if they would hold hearings and publish reports that shine a light on the likely implications of Trump's deregulatory agenda, focusing on the foregone benefits to children's health. Kids, parents, and other guardians everywhere need to know that when they hear the president boast of cutting red tape and eliminating regulatory costs, the other side of the coin is more asthma attacks, less protection of their drinking water, and higher exposure to pesticides.

The Trump administration's disregard for children's health is something several committees ought to consider. The House Energy and Commerce Committee, of course, will be digging into Trump's deregulatory agenda, and it will find plenty of threats to children's health. The Judiciary and Government Oversight committees, too, might find it productive to focus on children. The courts have dinged the administration repeatedly for failing to follow appropriate procedures in its haste to undo Obama-era policies. There is a live debate about the level of deference courts should grant to agencies when litigants challenge new rules. And EPA is still planning to revamp the rules governing how environmental economists measure the costs and benefits of new rules. These don't need to be esoteric debates about administrative law – they have real consequences for real people, many of whom are children, and these committees have a unique capacity to bring those issues to life in hearings over the next two years.

An oversight agenda that centers on children's health would also remind us why Congress created protector agencies like EPA, the Food and Drug Administration (FDA), and the Consumer Product Safety Commission (CPSC): to limit the risks we face in our everyday lives, especially risks that are the predictable consequences of short-sighted corporate actions that few of us know about and even fewer can exert any influence over on our own. Just as important, oversight that centers on children's health will set the stage for a proactive regulatory reform agenda that means something to families across the country.

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Also from Matt Shudtz

Matthew Shudtz, J.D., is the Executive Director of the Center for Progressive Reform. He joined CPR in 2006 as policy analyst, after graduating law school with a certificate in environmental law.

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