In the News

The Institute for Policy Integrity tracked the Trump administration’s record in court throughout Trump’s four years in office. By its count, the administration was “successful” 58 times, and “unsuccessful” 200 times. That is, just 22 percent of the Trump administration’s regulatory or deregulatory actions that were challenged in court came through the legal process unscathed.

The Supreme Court’s consideration of the "major questions doctrine," a judicial doctrine that can limit agency authority to act on major issues facing the country, comes after a “huge uptick” in litigants—including the Trump administration, Republican attorneys general, and business groups—invoking it over the past decade in attempts to invalidate regulations, said Richard Revesz, who’s written about its recent use.

Increasingly it appears that Presidents only have two years to make policy if they want it to last. This is the thesis of a forthcoming article by two legal experts who argue that President Donald J. Trump made aggressive use of a set of policy-reversing tools during his term and that President Joseph R. Biden has followed suit. The article’s authors—Bethany A. Davis Noll, the executive director of the State Energy & Environmental Impact Center at the NYU School of Law, and Richard L. Revesz, AnBryce Professor of Law and Dean Emeritus at the NYU School of Law—contend that Presidents can combine these tools to roll back recent policy, making any regulations issued in the last two years of the previous presidency vulnerable to repeal.

Despite the leadership issues and skeleton staffing, “OIRA is not slowing the process down,” said Ricky Revesz, a New York University law school professor who directs the Institute for Policy Integrity. “[Rules] seem to be coming out at a reasonable clip.”

Prof. Daniel Farber weighed in with a post titled "Regulatory Analysis in Unsettled Times," writing that "CBA can most effectively be defended as a guardrail against bad decisions rather than a monorail to ideal ones." Prof. Amy Sinden's piece contends that CBA is often not the most effective tool in situations with data gaps and unquantified benefits, while Prof. Caroline Cecot writes, "Critics attack CBA simultaneously for being easy to manipulate, anti/pro-regulatory, not transparent, & persistently net costly for some groups—but their preferred alternatives all perform worse by these same measures."

These findings offer the Biden administration a critical lesson. Executive agencies cannot blindly rely on their traditionally high success rate in litigation. If agencies fail to engage in reasoned decision making and remain within statutory limits, courts will serve as a bulwark.

The Trump-named anti-worker National Labor Relations Board majority hit a very sour note this year when it tried to use a case involving Musicians Local 23’s informational leafletting to write new national restrictions on workers exercising their rights. The 3-0 ruling on Aug. 31 by the D.C. Circuit Court of Appeals called the board’s limits “arbitrary and capricious.” The ruling was yet another in a long line of federal appellate court defeats for the former GOP Trump regime and its constant attempts to write agency rules in favor of the corporate class. NYU’s Institute for Policy Integrity, which tracked such rulings, reported the Trump government lost such cases 77% of the time (59 wins, 200 losses).

This kind of bot would help catch human errors and help make regulations more accurate. Language processing tools could analyze a proposed rule to determine its subject matter area, then crawl through related academic research to find and submit relevant scientific studies to the agency. This could help improve the government’s analytical basis for its policy choices.

In a recent essay, Natasha Brunstein and Richard Revesz, who directs New York University’s Institute for Policy Integrity, charge that efforts by Republican state officials to use the so-called “major questions” doctrine in their nascent bid to reinstate the Trump-era Affordable Clean Energy (ACE) rule governing power plant GHGs should be met with “great skepticism” given the Trump administration’s distorted use of the doctrine for deregulatory purposes.

Days before a Biden administration working group releases an “interim” value for the social cost of carbon used to estimate the benefits of greenhouse gas reduction measures, Richard Revesz, director of the Institute for Policy Integrity at New York University, is urging a broad reform of the SCC and the associated “discount rate” of future impacts in order to bolster the value of new EPA GHG rules.