//  4/18/17  //  Commentary

The Information Wars Series: Law operates as it is applied to a set of facts.  Policy is likewise made in response to or anticipation of a set of facts.  While facts are often reasonably in dispute, good policy and sound application of the law require a willingness to engage with facts.  Indeed, fruitful debate about legal principles and policy judgments often emerges only when we can agree—or stipulate to—the facts.  Yet the Trump administration has attempted to subvert or conceal data in a range of policy areas: from police violence, to LGBTQ rights and protections, to climate change.  In this series, we analyze the spheres in which the administration is undermining essential data, the prerequisite to sound—and democratically accountable—policymaking and to the protection of fundamental rights.

In the first two posts of this series, we analyzed how the Trump administration has subverted the federal government’s collection of information that is necessary to understand both LGBTQ discrimination and racialized police violence. The administration has also attempted to blatantly conceal information relevant to environmental policy.

President Trump has a long history of climate change denial. In an array of colorful tweets, Trump has referred to climate change as “a total hoax,” a “con job,” and, not once but twice, “bullshit.” He has suggested that climate change is a Chinese conspiracy, claimed his firsthand observations of cold weather disprove climate change, and mocked the “so-called ‘scientists’” who study the phenomenon.

So when Trump was elected the 45th President of the United States, climate scientists and advocates were understandably concerned. Part of the concern was whether the new administration would undermine—or perhaps even erase—decades of government climate science and data.

As it turns out, scientists and advocates were right to worry. President Trump has signed multiple executive orders directing his administration to loosen environmental regulation. In one of his first orders, he called on agencies to expedite environmental review for infrastructure projects. 

More recent orders have targeted the government’s information collection and publicizing efforts.  On March 28, President Trump signed an executive order titled “Promoting Energy Independence and Economic Growth.”  The centerpiece of the order is a directive to unwind President Obama’s Clean Power Plan, which was established to ensure that the United States would meet its Paris Agreement commitments. But the order also revokes Obama executive orders that directly require data collection and public data sharing. President Obama’s Executive Order 13653, for example, directs the Department of Defense, Health and Human Services, the Environmental Protection Agency, Homeland Security, and other agencies to “work together to develop and provide authoritative, easily accessible, usable, and timely data, information, and decision-support tools on climate preparedness and resilience.”

The administration is also undermining data in more indirect ways. When Trump announced his 2018 budget request—the so-called “skinny budget”—Science magazine labeled it a “grim budget day for U.S. science,” noting that “[t]he ax falls on research.”  Trump’s plan would slash the EPA’s budget by 30% (so our air will be “full of coal and danger,” as a piece the White House linked to explained).  It will also totally eliminate other smaller programs such as the National Oceanic and Atmospheric Association’s Sea Grant program, which supports academic research to help coastal and lakeshore communities adapt to climate change. The Sea Grant’s program budget is $73 million per year.  The President’s seven weekend trips to his coastal Mar-a-Lago resort, by contrast, have likely already cost taxpayers nearly 10% of the overall Sea Grant budget. (Each trip to Mar-a-Lago is estimated to cost $1 million.)

In a recent interview, EPA Administrator Scott Pruitt disputed, contra his own agency as well as NASA and the National Oceanic and Atmospheric Administration, that carbon dioxide is the primary contributor to recent global warming. Interestingly, Pruitt argued we need more information, not less. He argued that “measuring with precision human activity on the climate is something very challenging to do and there’s tremendous disagreement about the degree of impact,” adding that “we need to continue the debate and continue the review and the analysis” in order to answer that question. 

But even as Pruitt claims that what he really wants is more information (while simultaneously refuting scientific consensus), the administration is doing just the opposite: revoking and undermining the previous legal mandates to gather necessary information and slashing budgets needed for future research.

 Burying climate data is especially pernicious because climate change is indisputably a complicated problem with no easy policy solution. Although we understand the problem decently well after decades of research, we (quite obviously) lack political agreement on the appropriate policy to combat it.  Burying the information doesn’t get us to reasoned policy; instead, it subverts public debate, getting the do-nothing policy the administration would prefer without forcing it to engage deeply in the debate around why particular climate regulation is in fact more costly than is reasonable given what scientists know and predict about climate change.

Understanding climate change isn’t just an environmental issue. In written responses to Congress, Defense Secretary James Mattis unequivocally stated: “Climate change is impacting stability in areas of the world where our troops are operating today.”  Climate change is a national security issue.  It is also a geopolitical stability issue, and a health and safety issue to boot. It’s incredibly complex and it’s an area where the government has created an indispensible research infrastructure. President Trump is now the steward of that infrastructure.  Let’s hope he starts taking that responsibility seriously.

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Real Problem with Seila

8/24/20  //  In-Depth Analysis

Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

U.C. Hastings College of the Law

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.