Challenging Deregulation: Ending Legal Standing’s Pro-Corporate Bias
July 8, 2021
By Ariela Weinberger
New brief explains how policymakers could design regulations to privilege the public’s best interests over corporate entities’
The legal doctrine of standing, which ensures federal courts only hear disputes about concrete legal questions from litigants with a sufficiently significant stake in the outcome, structurally favors directly regulated entities (e.g., polluters, insurers, financial institutions) over a regulation’s intended beneficiaries (e.g., workers, students, consumers, and the environment). A new co-branded brief by the Roosevelt Institute and Governing for Impact, “Solving Standing’s Corporate Bias: How Agencies Can Empower Advocates to Challenge Deregulation,” explains how administration officials can overcome that imbalance when it comes to regulatory policy.
What in theory sounds like a technical legal consideration, in practice has created troubling disparities in who can access the justice system. Corporate interests can almost always establish standing to challenge new regulations, but the beneficiaries of regulations often struggle to do the same when a deregulatory administration issues a rollback. This skew carries important implications for which types of rules face delayed implementation—no trivial matter, given that the Trump administration refused to defend in court many rules promulgated at the end of Obama’s second term—or even what rules and regulations are ultimately invalidated by courts. For example, despite its penchant for issuing regulations unlawfully, many Trump administrative actions never received judicial scrutiny because advocates struggled to meet threshold standing requirements.
The new brief finds that regulators are far from helpless in the face of this deregulatory bias. Co-authored by Rachael Klarman and Will Dobbs-Allsopp of Governing for Impact, the brief explains how administrative policymakers could design regulations that empower progressives to more robustly challenge the next conservative administration’s inevitable deregulatory agenda. By incorporating “standing hooks” (categories of regulatory provisions) into new rulemakings, agencies can improve the odds that advocates will be able to establish standing to defend new rules from future rollback attempts.
Insight from the authors:
“Fundamentally, the regulatory state exists to improve the lives of consumers, workers, and families. Yet thanks to constitutional standing doctrine’s lopsidedness, these are the very people who struggle the most to get into court to prevent unlawful deregulation.
Executive branch policymakers should take standing’s inherent corporate biases seriously; otherwise, they risk seeing their hard-won regulatory advances undone as soon as the next conservative administration takes office. Following the release of this report, we hope that regulators craft new rules with an eye toward helping advocates establish standing in the future.”
About the Roosevelt Institute
The Roosevelt Institute is a think tank, a student network, and the nonprofit partner to the Franklin D. Roosevelt Presidential Library and Museum that, together, are learning from the past and working to redefine the future of the American economy. Focusing on corporate and public power, labor and wages, and the economics of race and gender inequality, the Roosevelt Institute unifies experts, invests in young leaders, and advances progressive policies that bring the legacy of Franklin and Eleanor into the 21st century.
To keep up to date with the Roosevelt Institute, please visit us on Twitter or follow our work at #RewriteTheRules.
About Governing for Impact
Governing for Impact (GFI) was founded in 2019 with the mission to prepare a new administration to make transformative change. In addition to developing policy proposals about democracy reform and combating climate change, GFI, with a team of regulatory experts and administrative lawyers, produced a series of memoranda about how a new administration could quickly and reliably reverse the Trump Administration’s regulatory agenda.