Robert Reich,
For years, conservatives have railed against what they call the “administrative state” and denounced regulations.
But let’s be clear. When they speak of the “administrative state,” they’re talking about agencies tasked with protecting the public from corporations that seek profits at the expense of the health, safety, and pocketbooks of average Americans.
Regulations are the means by which agencies translate broad legal mandates into practical guardrails.
Substitute the word “protection” for “regulation” and you get a more accurate picture of who has benefited — consumers, workers, and average people needing clean air and clean water.
Substitute “corporate legal movement” for the “conservative legal movement” and you see who’s really mobilizing, and for what purpose.
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I spent four years as policy director at the Federal Trade Commission, advising the commissioners on how best to protect the public from corporate excesses. I spent four more years as secretary of labor, protecting American workers from the depredations of big American corporations.
Most large corporations I dealt with obeyed laws and regulations designed to protect the public, but they spent a great deal of money trying to prevent such laws and regulations from being created in the first place and additional efforts contesting them through the courts.
Last week, the Supreme Court made it much harder for the FTC, the Labor Department, and dozens of other agencies — ranging from the Environmental Protection Agency to the Food and Drug Administration, Securities and Exchange Commission, Occupational Safety and Health Administration, Consumer Financial Protection Bureau, and National Highway and Safety Administration — to protect Americans from corporate misconduct.
On Thursday, the six Republican-appointed justices eliminated the ability of these agencies to enforce their rules through in-house tribunals, rather than go through the far more costly and laborious process of suing corporations in federal courts before juries.
On Friday, the justices overturned a 40-year-old precedent requiring courts to defer to the expertise of these agencies in interpreting the law, thereby opening the agencies to countless corporate lawsuits alleging that Congress did not authorize the agencies to go after specific corporate wrongdoing.
In recent years, the court’s majority has also made it easier for corporations to sue agencies and get public protections overturned. The so-called “major questions doctrine” holds that judges should nullify regulations that have a significant impact on corporate profits if Congress was not sufficiently clear in authorizing them.
Make no mistake: Consumers, workers, and ordinary Americans will be hurt by these decisions. Big corporations — especially their top executives and major investors — will make even more money than they’re already making because of them.
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These rulings are the consequence of a corporate strategy launched 53 years ago.
In 1971, the U.S. Chamber of Commerce, then a modest business group in Washington, D.C., asked Lewis Powell, then an attorney in Richmond, Virginia, to recommend actions corporations should take in response to the rising tide of public protections (that is, regulations).
Powell’s memo — distributed widely to Chamber members — said corporations were “under broad attack” from consumer, labor, and environmental groups.
