A Law and Political Economy Agenda for Labor and the Constitution

This post is part of our series on the political economy of labor & the constitution. You can find all of our posts on this topic here.

Kate Andrias

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

At the end of September, labor law scholars gathered at a conference focused on “Labor and the Constitution: Past, Present, and Future.”  There, a group of us considered the problem of “Political Economy and the Constitution”—and the extent to which the Law and Political Economy (LPE) analytical frame can be useful in building a more democratic and egalitarian future for workers.

As readers of this blog know, LPE represents an emerging approach in legal scholarship—or at least a return to an old approach that had long been dormant.  Yet, in contrast to other areas of the legal academy, attention to questions of economic power never disappeared from view in labor law.  Maybe more than in any other field, people who study the history of the workplace and workers’ position in society have long recognized the importance of power. They have been acutely aware of connections between the political and the economic, between markets and law. Continue reading

To Democratize Environmental Law, Let Ordinary People Decide

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

Conor Dwyer Reynolds

Environmental law has never felt so undemocratic. On nearly every aspect of environmental protection, the federal government is disconnected from the desires of its citizens. Despite overwhelming public support for increased government action on the environment, the Environmental Protection Agency’s workforce is shrinking, industry lobbyists increasingly regulate their former employers, and polluters face fewer and fewer inspections and criminal prosecutions. And while the majority of Americans believe climate change is an “urgent” problem the government needs to do “a lot” about, the Trump Administration proposes rules which will exacerbate greenhouse gas emissions, like its methane rollback plan.

It’s easy to feel powerless in the face of this delay and destruction. Petitions can be signed, protests can be attended, but at day’s end, those actions don’t seem to direct or decide environmental policy. Government officials do. The best most citizens can hope for is that a still-distant election will produce a friendlier administration, one that will manage to embrace our priorities despite the immense influence of industry.

There’s an irony beneath that sense of powerlessness, one that reveals a tragic flaw in modern environmental law. I want to both explore that flaw and introduce a tool from environmental law’s past that might help fix it. It’s a tool that entrusts ordinary people to decide: the jury.

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The democratic political economy of Administrative Law

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

K. Sabeel Rahman-

The modern administrative state has always faced ongoing debates about the appropriate balance between administrative authority and procedural constraint. But we are in a new moment of political peril in this debate. A newfound skepticism of administrative power has shaped recent judicial decisions exploring limiting previous deference regimes and even suggesting a revival of the non-delegation doctrine. The defense of administrative agencies takes on even greater urgency in the current political moment, as the Trump administration, from its very outset, has sought the “deconstruction of the administrative state.” These critiques have more in common with the arguments made by conservatives in the 1930s that found a welcome audience in the early Hughes Court than they do with the critiques that followed the New Deal. Indeed, academic and journalistic defenders of the administrative state have warned about the risks of what Gillian Metzger has dubbed the new “anti-administrativism” movement.

But this moment of debate is about more than just the familiar clashes between “big government” and “free market” visions of political economy. These attacks on the administrative state—and the historical and current efforts to (re)build administrative institutions—are a critical frontline for our substantive moral values of democracy, equality, and inclusion.

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Policymaking as power-building

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

K. Sabeel Rahman-

Economic inequality and political inequality go hand in hand. American government is empirically more responsive to wealthy citizens, who are better organized and more represented in policymaking institutions. These findings, coupled with an increasingly blatant and troubling attack on democracy and voting rights more broadly, have helped fuel a renewed push around democracy reform. But an often-overlooked dimension of institutional democracy reform lies within the administrative state itself. It is in the administrative state that many of the critical day-to-day governance decisions—from zoning to civil rights enforcement to worker protections, financial regulations, and consumer rights and more—all take place. Without a greater degree of democratic responsiveness and accountability within the administrative process, these substantive rights are unlikely to be vindicated or equitably enforced. This means that policymakers and administrative law scholars alike need to start approaching the task of administrative institutional design with a greater attention to power disparities—what I call, “policymaking as power-building”.  In this post, I outline the idea of power-building as a focus for administrative policy and institutional design, and use the last decade of financial reform debates, particularly around the Consumer Financial Protection Bureau and the Financial Stability Oversight Council, as examples.

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Reclaiming Notice and Comment: Part II

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

Nancy Chi Cantalupo, Matthew Cortland & Karen Tani –

In an earlier post in this series, two of us (Cortland and Tani) described how the notice-and-comment process has entered the arsenal of a range of groups and organizers, many seeking to challenge the policies of the current administration. We made the case by highlighting grassroots efforts to explain to the public what notice-and-comment is and how to participate in it. The effects of these efforts seem clear. Note the more than 1,800 comments on Kentucky’s 2016 request for a Medicaid Section 1115 waiver (seeking to impose a work requirement, among other changes). Or consider the 266,000+ comments to the Department of Homeland Security after the agency proposed a rule that would make an immigrant’s use (or likely use) of public benefits grounds for inadmissibility.

Here we discuss a type of organizing that has followed in the wake of mass commenting efforts, focused on analyzing the content of comments and ensuring their due consideration. Our central example comes from the Department of Education’s recent notice of a proposed rulemaking (NPRM) regarding the meaning of Title IX for complaints of sexual harassment (an umbrella legal term that includes sexual violence). Perhaps unsurprisingly, given the activism around the ED’s interpretation of Title IX in the Obama years, the agency recorded over 124,000 comments—and spurred the creative cataloging initiative we spotlight here. By analyzing comments themselves, participants in this initiative seek to support public engagement with administrative law and vindicate the democratic values at the heart of notice-and-comment mandates.

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Reclaiming Notice and Comment

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here

Matthew Cortland and Karen Tani –

In June 2016, five months before the election of President Donald Trump, Senator Elizabeth Warren wrote a post for the Regulatory Review on “corporate capture of the regulatory process.” It highlighted myriad opportunities in the rulemaking process “for powerful industry groups to tilt the scales in their favor.” The “notice and comment” process offered a key example: “industry insiders and their highly-paid allies” produce “an avalanche of detailed, well-funded, well-credentialed comments,” Warren observed, which administrators must consider if the eventual rulemaking is to survive judicial review.

Fast forward three years, into an administration that has besieged the administrative state—questioning its legitimacy, demoralizing its personnel, slowing the pace of regulation, and  withdrawing from important regulatory realms. In this anti-regulatory moment, notice-and-comment might seem a quaint artifact from a bygone age: with such meager regulatory output, especially aimed at industry, what is left to comment on?  Instead, however, notice-and-comment has become a key tool of opponents of the current administration—a vehicle for mobilizing “grassroots experts” and enabling marginalized voices to speak against dehumanizing agency action.

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Law and Politics in Employee Classification

Benjamin Sachs – 

As has been widely reported, the U.S. Department of Labor issued an “opinion letter” yesterday concluding that an unnamed “virtual marketplace company” does not employ the workers who make the company viable. Instead, the letter finds that these workers are independent contractors. The letter is flawed in multiple ways. As Sharon will explain, deciding a major issue of employment law – maybe the major contemporary issue of employment law – through an informal process that allows one party to present all the facts is decidedly inappropriate. There are also multiple substantive problems: as Charlotte pointed out, the letter considers relevant to the control inquiry the fact that this VMC’s workers can also work for other VMCs. I suppose the fact that Wal-Mart workers can also work for Target suggests that Wal-Mart workers are independent contractors of Wal-Mart. Generalizing, I suppose if low wage workers must rely on multiple jobs to make ends meet this should incline decisionmakers to conclude that those workers are all independent contractors.

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The Procedure Fetish

Nicholas Bagley

That’s the title of a new article of mine, slated for publication in the Michigan Law Review. It’s more polemical than most of my work, and it aims to disrupt some of the tidy stories that organize modern administrative law. Although I hope it finds an audience across the political spectrum, its primary target is my friends on the left, many of whom I fear are playing into the hands of those who want to strangle the administrative state.

The article opens with a puzzle. Knowing full well that onerous procedural rules will hamstring federal agencies, Republican policymakers have pushed “regulatory reform” bills like the Regulatory Accountability Act, the REINS Act, and the Separation of Powers Restoration Act. By tilting the scales against agency action, Republicans hope to end job-killing regulations and invigorate the free market. It’s a libertarian’s dream.

Democrats get it. They understand that the tangle of new procedural rules, if adopted, would bind the administrative state as effectively as Lilliputian ropes bound Gulliver. And they’ve generally (though not universally) opposed what they view as brazen anti-statist measures, which would frustrate their efforts to forestall environmental degradation, protect consumers, and empower workers.

So here’s the puzzle. If adding new administrative procedures will so obviously advance a libertarian agenda, might not relaxing existing administrative constraints advance liberal ones? What if Gulliver is already bound?

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Reconstructing the Administrative State

Blake Emerson –

In the early weeks of the Trump presidency, Steve Bannon declared that one of its principal tasks would be the “deconstruction of the administrative state.” Though Bannon has since left the White House, this project has so far proved one of its most enduring preoccupations. Administrative bodies such as the Environmental Protection Agency, Departments of Health and Human Services, Justice, and Education, and Federal Communications Commission have reversed course on key progressive initiatives such as reductions in carbon emissions, healthcare insurance enrollment, police reform, redress of campus sexual harassment and assault, and net neutrality.

agencies

The tenured civil service is being sidelined, or even targeted by opposition research firms hired by their own departments. The recently enacted tax bill promises to starve the government of the resources to sustain the remaining pillars of the welfare state, namely Medicare, Medicaid and Social Security. And the appointment of Justice Gorsuch to the Supreme Court casts doubt on the future of a core principle of administrative law—that courts should defer to agencies’ reasonable interpretations of statutory ambiguities.

This effort to rein-in the regulatory state has been at the center of the conservative agenda since the 1930s, and ascendant since Reagan. It overlaps with a broader neoliberal policy framework that many centrist Democrats share, which remains skeptical of the public provision of goods and services, and “command-and-control” regulation. Bill Clinton’s bipartisan mantra that “the era of big government is over” has steadily eroded regulatory and welfare institutions, and fulfilled its own prophecy that bureaucrats are incapable of promoting the public good.

As we near the pinnacle of this era of governance, Bannon’s declaration throws into relief a constituent feature of any viable counter-movement. If we are to develop a political program capable of rescuing the American polity from private domination, economic inequality, and caste hierarchy, we must think through what kind of administrative apparatus could carry that program into action. One that sees its role primarily as correcting market failures, “nudging” individuals to make decisions the expert deems wise, and maximizing aggregate social welfare, is likely to simply reproduce the logic of private enterprise within government.

The hegemonic framework for policy reasoning today—cost-benefit analysis—attempts to approximate market pricing where it does not exist, asking, for example, how much people are “willing to pay” to avoid certain kinds of harms. Such methods can be useful in ensuring that decision-makers fully take into account the economic effects of proposed courses of action. But they instill a regulatory ideology where the model of formally free, reciprocal, and competitive exchange predominates over the practice of joint action motivated by a common aim. We come to approach even political rights and obligations as priced commodities rather than as products of either reasoned agreement or social struggle. Instead of a cost-benefit state, we need a state that simulates an egalitarian society and stimulates a democratic politics.

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