National Security, Climate Change, and Emergency Declarations

by Daniel Farber | February 18, 2019

Originally published on Legal Planet.

Trump finally pulled the trigger and declared a national emergency so he can build his wall. But if illegal border crossings are a national emergency, then there's a strong case for viewing climate change in similar terms. That point has been made by observers ranging from Marco Rubio to Legal Planet's own Jonathan Zasloff in a post last week. I agree, but I want to dig deeper because it's such an important point.

In order to uphold Trump's emergency declaration, the Supreme Court will have to either rule that the definition of emergency is exceedingly broad or that courts have little or no power to scrutinize a presidential declaration. There is a genuine legal basis for calling climate change a national emergency, as opposed to Trump's ridiculous border-security declaration.

One reason why it would be hard for the Supreme Court to overturn a climate change declaration is that some attributes of climate change and immigration are similar. Both issues involve the country's relations with the outside world, an area where presidential powers are strong. But it isn't as if we suddenly found out about border crossings or climate change. Given these similarities, it would be very difficult for the conservative majority to explain why it was deferring to the president in one case but not the other.

The only major difference actually cuts strongly in favor of an emergency declaration for climate change: ...

Flipping the Conservative Agenda

by Daniel Farber | January 31, 2019
Originally published on Legal Planet. Conservatives, with full support from Donald Trump, have come up with a menu of ways to weaken the regulatory state. In honor of National Backward Day – that's an actual thing, in case you're wondering, and it's today – let's think about reversing those ideas. In other words, let's try to come up with similar mechanisms to strengthen protections for public health and the environment instead of weakening protections. It's an interesting experiment, if nothing ...

Using Emergency Powers to Fight Climate Change

by Daniel Farber | January 14, 2019
Originally published on Legal Planet. Republicans are apparently worried that if Trump could use emergency powers by declaring border security a national emergency, the next president could do the same thing for climate change. There's no doubt that this would be far more legitimate than Trump's wall effort. Border crossings are much lower than they were ten years ago; he has said in the recent past that his prior efforts have vastly improved border security. In contrast, the Pentagon has classified ...

How Trump Officials Abuse Cost-Benefit Analysis to Attack Regulations

by Daniel Farber | January 09, 2019
This op-ed was orignally published in the Washington Monthly. In December of 2017, Donald Trump gathered the press for a variation on a familiar activity from his real estate mogul days. Stretched between a tower of paper taller than himself, representing all current federal regulations, and a small stack labeled "1960," was a thick piece of red ribbon – red tape, if you will. The president promised that "we're going to get back below that 1960s level." With his daughter ...

Two Years and Counting: Looking Forward

by Daniel Farber | December 10, 2018
Cross-posted from Legal Planet. In terms of regulatory policy, the second half of Trump's term is shaping up to look a lot like Obama's final two years in office. Congress won't be doing much to advance Trump's environment and energy agenda, as was the case with Obama. So, like Obama, Trump's focus will be on administrative action, particularly regulatory initiatives (or deregulatory ones, in Trump's case). The big question is how these efforts will fare in court. I want to ...

Two Years and Counting: A Historical Perspective

by Daniel Farber | December 06, 2018
Cross-posted from Legal Planet. This is the second of three posts assessing the first two years of the Trump administration. You can read the first post here. We all seem to be subscribed to the "All Trump News, All the Time" newsfeed. It may be helpful to step back a bit and compare Trump with his last Republican predecessor, George W. Bush. How do the two stack up? Bush and Trump were very different in character and style, but their ...

Two Years and Counting: Trump at Mid-Term

by Daniel Farber | December 03, 2018
Cross-posted from Legal Planet. In September 2017 – that seems so long ago! – Eric Biber and I released a report assessing the state of play in environmental issues 200 days into the Trump administration, based on an earlier series of blog posts. As we end Trump's second year, it's time to bring that assessment up to date. This is the first of three posts examining what Trump has done (and hasn't done) in terms of environment and energy. For ...

Taming White House Review of Federal Agency Regulations

by Lisa Heinzerling | October 11, 2018
This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission. Presidents since Ronald Reagan have, by executive order, required agencies to submit significant regulatory actions to the White House for review. Academic and public interest observers have variously criticized this review as slow, opaque, chaotic, lawless, and power-grabbing. Yet every president in the intervening years has not only embraced but also deepened the control of the White House ...

Trump to America's Most Vulnerable Communities: You're on Your Own

by James Goodwin | September 28, 2017
UPDATE: President Trump is no longer scheduled to speak on deregulation on October 2, but the planned deregulatory "summit" with various cabinet-level agencies is still slated to occur. Government-sanctioned cruelty makes for shocking images, as the events of the past few weeks demonstrate. People in wheelchairs forcibly dragged from congressional hearing rooms for protesting legislative attempts to strip them of access to affordable health care. The uncertainty on the faces of Puerto Rican parents as they survey the damage to ...

New Analysis Exposes the Trump Administration's Rulemaking Delays

by Rena Steinzor | July 19, 2017
Early in the Trump administration, news about delayed and "disappeared" rules emerged in several media outlets. Many of these delays were driven by a memo issued by Trump White House Chief of Staff Reince Priebus on January 20, 2017, which "froze" the implementation of rules until March 21, 2017, so that a representative of the administration could review them. Freezing rules for a limited amount of time is standard practice for newly inaugurated presidents. But the White House and agency ...

Chamber's Brief Lays Bare Crackpot Theory at Heart of Two-for-One Order

by Amy Sinden | June 15, 2017
I don't know what executive order the Chamber of Commerce is defending in the amicus brief it filed Monday in Public Citizen v. Trump. But it doesn't appear to be the one at issue in that lawsuit. The lawsuit charges that Trump's "one-in, two-out" executive order is unconstitutional. That's the order he issued in January requiring agencies to repeal two regulations for every one they issue. It requires agencies to make sure that the costs imposed by any new regulation ...

CPR Statements: Trump Picks for EPA, Interior, Energy Chart the Wrong Course for Our Health, Our Environment, and Our Energy Policies

by Brian Gumm | December 13, 2016
President-Elect Donald Trump has selected Oklahoma Attorney General Scott Pruitt as his Administrator of the U.S. Environmental Protection Agency (EPA), Rep. Ryan Zinke (R-MT) as his Interior Secretary, and former Texas governor Rick Perry as his Energy Secretary. The Center for Progressive Reform (CPR) has released statements on the picks. Robert Glicksman, CPR Board Member, on Department of the Interior Secretary nominee Rep. Ryan Zinke (R-MT):  Donald Trump's selection of Rep. Ryan Zinke (R-MT) as Secretary of the Interior does nothing to ...

An Uncertain Anniversary

by Joseph Tomain | December 12, 2016
This blog post is based on the Introduction to my forthcoming book, Clean Power Politics: The Democratization of Energy (Cambridge University Press, 2017). One year ago, 195 nations met in Paris and signed what has been hailed as an historic climate agreement.[1] To date, 116 parties have ratified the convention, and it went into force on November 4 of this year.[2] President Obama acknowledged the talks as a "turning point, that this is the moment we finally determined we would ...

Racism, Cost-Benefit Analysis, and Trump Advisor Steve Bannon

by James Goodwin | November 29, 2016
What does Steve Bannon – who, despite his well-documented racism, anti-Semitism, and misogyny, was appointed as president-elect Trump's senior counselor and White House strategist – have to do with a rarified and wonky policy exercise such as regulatory cost-benefit analysis? Unfortunately, a lot, as it turns out.  From a serious policy perspective, the Trump administration's approach to governance remains terra incognita, and this is especially the case with its approach to implementing laws through regulations. So far, Trump has signaled ...

Will the Media Rise to the Trump Challenge or Just Fall into His Trap?

by Matthew Freeman | November 29, 2016
Ever since Richard Nixon's vice president, Maryland's own Spiro Agnew, described the nation's ink-stained journalists as "nattering nabobs of negativism," attacks on the media have been reliably base-pleasing material for conservative politicians. But Donald Trump is in a category all his own. For most pols, attacking the press is a way to deflect criticism. For Trump, it was a defining element of his candidacy. At his rallies, he kept the press corps literally penned up so that he could more ...

The Assault on Our Safeguards

by Thomas McGarity | November 22, 2016
We are about to experience a fifth major assault on the health, safety, environmental, and consumer protections that Congress put in place during the 1960s and 1970s, protections that most of us take for granted. And all indications are that this assault will be more intense and more comprehensive than any of the prior assaults on the governmental protections that shield our families and communities from the ravages of an unfettered free market.  In my 2013 book, Freedom to Harm, ...

What Can We Expect from a President Trump?

by Matt Shudtz | November 21, 2016
Hazy as they may be, we are all looking into our crystal balls, trying to envision what a Donald Trump presidency will mean for the world around us. The first glimpses we have of the future – Steve Bannon at Trump's right hand, Jeff Sessions as Attorney General, Michael Flynn as National Security Advisor – project something much darker and more insular than befits a nation whose arc of history is as progressive as ours. Of course, that arc is ...

Long-Term Forecast for Bay Restoration: Cloudy with a Chance of Storms

by Evan Isaacson | November 18, 2016
Last week, the Center for Progressive Reform co-hosted a symposium with the University of Maryland School of Law entitled "Halftime for the Bay TMDL." The symposium was supposed to be about what states, cities, counties, the U.S. Environmental Protection Agency (EPA), industry, and citizens can do to accelerate progress in the second half of the 15-year Chesapeake Bay clean-up effort. However, participants decided that it was equally important to discuss the potentially alarming prospects facing future Bay progress when a ...
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