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Civil Rights in the Deregulatory State

Federal regulations have produced some of our country’s key gains in health and safety, opportunity, and social equality. They provide the working gears of our civil rights legislation. Agencies’ ability to respond to current conditions and issue evidence-based regulations is fundamental to their ability to serve the public interest. While advocacy to improve federal programs has always been needed, we now seek to protect the gains that Americans have won for social justice and that have roots in the New Deal, the Great Society, and the Civil Rights Movement.

Tracking Activity by the Administration

“Regulatory Reform” Executive Orders

E.O. 13771 (“Reducing Regulation and Controlling Regulatory Costs,” January 30, 2017) directs agencies to offset new regulatory activity with deregulatory offsets and zero-cost caps. For example, it requires repeal of two existing regulations for each one passed; requires that the combined incremental cost of new regulation is zero; and requires that costs savings for new rules must come from cost reductions associated with at least two existing rules. While the E.O. includes language about compliance with the APA and other law, it creates clear conflicts with agencies’ statutory missions. This E.O. is currently the subject of a lawsuit brought by Public Citizen, NRDC, and Communications Workers of America with Earthjustice.

OIRA Memorandum: Implementing Executive Order 13771 (April 5, 2017) clarifies that E.O. applies to guidance as well as regulations. It also sets out procedures for agencies to follow on the contingency they fail to identify sufficient regulations to rescind under the requirements of E.O. 13771.

E.O. 13777 (“Enforcing the Regulatory Reform Agenda,” Feb. 24, 2017) directs agencies to designate Regulatory Reform Officers and Task Forces to carry out the Regulatory Reform agenda. This includes the directives of E.O. 13771, but also executive orders issued by previous administrations that direct retrospective review. This E.O. directs each Regulatory Reform Task Force to evaluate existing regulations and make recommendations to the agency head regarding their repeal, replacement, or modification, consistent with applicable law. The Task Force is to identify regulations that “eliminate jobs, or inhibit job creation; are outdated, unnecessary, or ineffective; impose costs that exceed benefits; create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies…[or] derive from or implement EOs or other Presidential directives that have been subsequently rescinded or substantially modified.” Those regulations that the Task Force identifies as “outdated, unnecessary, or ineffective” are to be priorities for regulation-cutting as the agency implements EO 13771’s offset scheme.

Federal Register Notices

Following the policy directives of E.O. 13777 and 13331 and the Administration’s Regulatory Reform Agenda, all federal agencies are seeking to identify regulations and guidance to “repeal, modify, or replace.” Several agencies have already published notices requesting public comment on which regulations to target for this purpose.

U.S. Department of Education, Evaluation of Existing Regulations (June 22, 2017)

U.S. Department of the Interior, Enforcing the Regulatory Reform Agenda under E.O. 13777 (June 22, 2017)

U.S. Department of Justice, Enforcing the Regulatory Reform Agenda under E.O. 13777 (June 28, 2017)


U.S. Department of the Treasury, Review of Regulations (June 14, 2017)

Resources

Preparing for Agency Action under Trump: An APA Primer [PDF]
Administrative law as a tool for executive agency restraint.

Advocacy

Exec. Order 13777 Fair Housing Comments
Executive Order 13777 (Enforcing the Regulatory Reform Agenda, Feb. 24, 2017) directs each federal agencies to form a “Regulatory Reform Task Force” and identify regulations to modify or rescind. In response to HUD’s Federal Register notice, PRRAC and partner organizations submitted comment letters opposing the repeal of civil rights rules (June 14, 2017).

links:
Letter submitted by PRRAC and coalition partners
Letter submitted by Lawyers’ Committee for Civil Rights Under Law

Letter submitted by American Civil Liberties Union
Letter submitted by National Fair Housing Alliance

Commentary

"How Attacks on the Administrative State Can Be Attacks on the Most Vulnerable" by Megan Haberle, in Spotlight on Poverty (March 2017)

Selected Links

Case materials: Public Citizen, NRDC, and Communications Workers of America v. Trump
Public interest groups’ lawsuit alleging that the Two-for-One/Cost-Cap Executive Order violates the Take Care Clause of the Constitution and directs agencies to violate the Administrative Procedure Act.

Coalition for Sensible Safeguards
News and advocacy resources on anti-regulatory legislation

Center for Progressive Reform
Research and commentary from regulatory scholars.

Public Citizen
Litigation in defense of regulations.

Notice & Comment
Blogging from the Yale Journal on Regulation, including conservative perspectives.

The Regulatory Review
Week in review and opinion pieces from the Penn Program on Regulation

In the Media

“The Deep Industry Ties of Trump’s Deregulation Teams,” New York Times (July 11, 2017)


“EPA asked the public which regulations to gut — and got an earful about leaving them alone,” Washington Post (May 16, 2017)
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