At a Crossroads: Environmental and Occupational Safety and Health Regulations After Trump

Abstract

In January 2022, almost one year to the day after President Donald Trump exited the White House, the Supreme Court handed down a shocking decision that effectively overturned an emergency standard issued by the Occupational Safety and Health Administration (OSHA) to protect workers from becoming infected by COVID-19. That standard represented one of the most aggressive steps taken by President Joe Biden to control a pandemic made substantially worse by his predecessor’s blundering and oftentimes reckless responses. Unsurprisingly, all three of Trump’s appointees to the Supreme Court were part of the majority that agreed to block the Biden rule in an unsigned per curiam decision. As this case illustrates, the Trump administration’s success in reshaping the federal judiciary with archconservative appointees is a big part of its anti-regulatory legacy that the United States will be living with for decades. It also underscores the enormity of the task we face in undoing the damage of the Trump years in order to better meet myriad pressing policy challenges, including growing economic inequality, systemic racism, and the climate crisis. In his latest book, Demolition Agenda: How Trump Tried to Dismantle American Government, and What Biden Needs to Do to Save It, leading regulatory law scholar Thomas McGarity takes stock of the damage the Trump administration did to the regulatory system so that we might start picking up the pieces and begin the longer project of bringing it back better and stronger. As the book is intended for a general audience, McGarity begins with a primer on the role of our regulatory system in our constitutional democracy and the historical successes it has achieved in protecting people and the environment against unacceptable risks. The “protective edifice,” as he calls it, “consists of the foundational laws that Congress has enacted over the years and the agencies that Congress has created to implement those laws by implementing regulations, imposing permit requirements, and enforcing the laws and regulations.” The entirety of our regulatory system is oriented toward the achievement of one “overarching purpose”—namely, “to protect people, places, and species, from polluters, profiteers and plunderers” (p. 14). This introduction also highlights the dedicated public servants who work for our protector agencies: The “scientists, engineers, economists who make up the civil service” and “play essential roles” in ensuring that the protective promise of our public interest laws is achieved in the real world. Significantly, in the story that McGarity tells, these public servants, thanks to their professionalism and strong employment protections, emerged among the heroes in the effort to limit the Trump administration’s damage. Another important piece of the background laid out in the book is how the disparate elements of the modern conservative movement came to coalesce around the anti-regulatory agenda that would become a defining trait of the Trump administration. Two key constituencies—small government ideologues (or “Free Marketeers”) and the corporate lobby (or “Business Republicans”)—were obvious allies in this fight, and indeed have been leading voices against regulation within the conservative movement for decades. Less obvious, though, was the increasingly influential constituency of populists that emerged with the rise of the Tea Party Movement. If anything, the members of this movement would seem to be at odds with the Business Republicans, given their apparent hostility to economic elites. What’s more, though the populist groups embraced much of the rhetoric of Free Marketeers, their primary ideological inspiration for doing so was culture war grievance, not a sincere commitment to “small government.” The “keep your government hands off my Medicaid” crowd was more concerned with making sure that the benefits of “big government” were not extended to “undeserving” groups, especially racial minorities. (Of course, one might be forgiven for questioning along similar lines the sincerity of beliefs of self-identified Free Marketeers.) Nevertheless, Trump “deftly co-opted” these insurgent populists and succeeded in integrating them into the broader conservative movement. At this point, hostility toward regulation became critical to keeping the potentially fragile Trumpist Book Review