Abstract
As I write this, over three quarters of the U.S. population (so far) are under directives to stay at home except to buy food, seek medical care, or enjoy an occasional breath of fresh air. The hope is that these “social distancing” practices will “flatten the curve” of infections from COVID-19, a novel and deadly strain of coronavirus (Mervoswh et al., 2020). Similar and often stricter measures have been taken in many other countries (Gettleman & Schultz, 2020). Meanwhile, unprecedented scenes of vacant public spaces course through news media and Internet sites (Hecimovic, 2020).
As national leader, Donald Trump’s initial response to COVID-19 was to dismiss the severity of the threat. On January 22, he announced “We have it totally under control. It’s one person coming in from China, and we have it under control. It’s going to be just fine” (Belevedere, 2020). The delayed federal response ensured that the number of infections, serious illnesses, and deaths would be higher if the United States had taken action to slow the spread of COVID-19 sooner (Shear et al., 2020). One estimate projects that the United States may suffer as many as 90,000 more deaths than if it had taken early and extensive measures similar to those in South Korea (Kristof, 2020).
Even after rising infection rates and growing public support for preventative measures compelled Trump to accept the dangers of the COVID-19 pandemic, he spent much of February and March often contradicting public health experts about the need for a temporary freeze of economic activity, promising that vaccines and medicines were only few weeks or months away despite scientific estimates of a year or more, and even suggesting unproven possible treatments, which in at least one case led to the death of someone who took the President at his word about the effectiveness of chloroquine (Curtis, 2020; Leonhardt, 2020). Trump also considered countermanding his own recommendations for “social distancing” by Easter (April 12) because “America was not built to be shut down” (Chalfant & Samuels, 2020). In the face of predictions by the administration’s own public health experts of a million infections and between 100,000 and 240,000 deaths, he relented and agreed to keep the guidelines in place until the end of April (Shear et al., 2020).
By the time you read this, the threat of COVID-19 may (or may not) have receded as a result of social distancing, new treatments, and the onset of warmer weather. By then, we will be better able to judge the wisdom or folly of Trump’s reluctant approach to addressing the COVID-19 pandemic.
At first glance, Trump’s response to this pandemic might appear unrelated to the theme of this issue, his administration’s sweeping deregulatory agenda. However, Trump’s responses to COVID-19 are cut from the same cloth as his aggressive efforts to roll back regulations designed to protect people and the environment from known corporate harms. They are both products of a deep-seated commitment to neoliberal ideology, magnified by an organic animosity to governing structures that interfere with corporate profit-making or presidential prerogatives.
Shortly after being elected, Trump revealed this hostility toward the U.S. regulatory system when he told a meeting of business executives at the White House “We can cut regulations by 75 percent. Maybe more, but 75 percent” (Trump, 2017). Some saw this claim as little more than Trumpian hyperbole (Sotsky & Wang, 2017). For sure, the Trump administration has not and remains unlikely to eliminate 75% of all the regulations governing corporate behavior. The regulatory system is too extensive, too popular, and too well fortified by legislation and case law to be reduced by three quarters anytime soon. Nevertheless, as the articles in this issue document, the regulatory rollbacks already accomplished by the Trump administration over the past 3 years have the potential to undermine human well-being, threaten public health, and further damage the ecosystems on which all life depends.
Trump’s commitment to protecting financial markets which informs his opposition to corporate regulation flows from the same poisoned well as his fumbled and reluctant response to the COVID-19 pandemic. Put bluntly, people will die, people will be sickened, and people will suffer financial harm as a result of the neoliberal extremism of the Trump administration. Given this, criminologists would do well to analyze the characteristics and consequences of the state crimes, white-collar crimes, and corporate crimes that will follow in the wake of widespread regulatory rollbacks and regulatory resets.
At the same time, analyses of Trump administration’s efforts to dismantle corporate regulation should avoid approaching them as an anomalous moment in the history of capitalism. Rather, Trump’s deregulatory agenda is best understood as a particular phase in the long-standing struggle between those who would commit harm in the pursuit of capital accumulation and those seeking government protections from those harms.
The regulatory powers of the state have been a fundamental part of the development and continuation of capitalism since agrarian capital first emerged from the carapace of 16th-century feudalism (Meskins-Wood, 2017). Most fundamentally, the state’s regulatory powers authorize as well as restrain behaviors. They define what is and is not property, who can claim ownership of property, what rights append to ownership of property, and how the state will respond to violations of those rights (Michalowski, 1985). The regulatory powers of the state also enable the material, legal, political, fiscal, and military scaffolding of the state on which the private accumulation of capital was built and on which it remains dependent (Harvey, 2011; O’Connor, 1973).
By the early 20th century, capitalist states found they also needed to periodically deploy their regulatory powers to save capitalism from its tendency to destroy the societal arrangements on which it depends and to resolve social conflicts generated by working-class social movements (Pearce, 1976; Polyani, 1944; Sklar, 1988). The tension that began in the late 19th century between the need for some degree of corporate regulation and private desires for unfettered accumulation of capital echoes to the present moment.
History is, as Brooks (1918 (p.337)) noted, “a search for a usable past.” Given that, whether the inauguration of a corporate regulatory system in the late 19th century was a real or a pyrrhic victory for progressive forces is not a settled question. However, we can know two things with some certainty.
One is that at every stage, from proposed law to actual enforcement, attempts to regulate harmful corporate behaviors have met significant resistance from corporations and smaller businesses where those regulations were perceived as threats to capital accumulation and support where those regulations facilitated the accumulation of capital.
The other is that every regulation is both a prohibition and a permission. When a limit is set on the release of some pollutant, permission is granted to pollute up to that limit. When a rule is established prohibiting certain forms of discrimination, forms of discrimination outside the rule’s boundaries are permitted. In this way, both regulation and deregulation are a form of necropolitics, the practice of deciding who will be allowed to live and live well and who will be allowed to suffer death, deprivation, or disenfranchisement (Mbembe, 2019). Thus, as Wonders and Danner detail in this issue, the Trump administration is not only rolling back regulations, it is also “rolling over” many sectors of the society, particularly those already disadvantaged.
The contributions to this special issue on regulatory rollback cover a range of consequences emanating from the Trump administration’s deregulatory agenda. Laureen Snider (“Beyond Trump: Neoliberal Capitalism and the Abolition of Corporate Crime”) and David Friedrichs and Dawn Rothe (“Regulatory Rollback and White Collar Crime in the Era of Trump: The Challenges of Perspective”) provide overarching inquiries that situate the Trump era within the wider history of regulation, deregulation, and criminological inquiry into these practices. The next three articles, Nancy Wonders and Mona Danner “(Regulatory Rollbacks and Deepening Social Inequalities”), Raymond Michalowski and Meredith Brown “(Poisoning for Profit: Regulatory Rollbacks, Public Health, and State-Facilitated Corporate Crime”), and Ronald Kramer “(Rolling Back Climate Regulation: Trump’s Assault on the Planet”) examine broad areas of regulatory change under Trump. The final two articles, Steven Bittle’s “In the Land of Corporate Impunity: Corporate Killing Law in the United States” and Susan Carlson’s “The U.S. Student Loan Debt Crisis: State Crime or State-produced Harm?” offer close focused examinations of harms that will likely increase as the result of Trump’s anti-regulatory schemas. In addition to the articles, this issue includes reviews of two books closely related to the regulatory rollback theme. The first is Michael Lewis’s The Fifth Risk, reviewed by Taimi Castle. The second is a review by Jose Atiles of Nicholas Shaxson’s The Financial Curse: How Global Finance Is Making Us All Poorer.
This special issue is far from an exhaustive inventory of the crimes and social harms that are being and will be generated by the largest campaign of deregulation in U.S. history. A comprehensive analysis of the impacts of the current move to deregulate American business would fill bookshelves, if not a bookstore. Nor can it be written until enough time has passed to understand the full impact of current deregulatory policies. For the moment, however, we can catch glimpses of how the Trump administration is using the COVID-19 pandemic to further its deregulatory goals through what Klein (2020) terms “coronavirus capitalism,” that is, using the pandemic to take long-desired deregulatory actions that could not be achieved under normal political conditions. In March 2020, for instance, the U.S. Environmental Protection Agency (EPA) announced it was suspending enforcement of environmental regulations, an unprecedented halt to federal environmental protection (Beitsch, 2020). Whether these types of autocratic suspensions of regulatory rules in the face of a national crisis will be “temporary” remains to be seen. However, past practices suggest that governments are often loath to surrender powers once taken (Gebrekidanl, 2020).
At this moment, it appears that the near and perhaps the long-term future of corporate regulation in U.S. will depend on the outcome of the 2020 presidential election. If Trump achieves a second term, we can expect deeper and more drastic deregulatory moves by a president freed from the concerns of reelection, and well positioned to reap the benefits of having populated the federal court system with conservative judges, along with a conservative majority on the Supreme Court. Moreover, a Trump second term will likely see the Supreme Court evolve into one divided between three liberal justices and six highly conservative ones, should any of the four remaining liberal judges leave the bench. Given this court composition, Trump’s goal of a 75% reduction in regulation might not be all that far away.
Should a Democratic President replace Trump, the trajectory of rapid deregulation may slow. The impacts of current deregulatory moves, however, will not be reversed immediately or easily. Moreover, should the next President be a “centrist” Democrat in the mold of President Clinton, many of the rollbacks achieved by Trump would likely remain in place.
We are living through a critical moment in the history of corporate regulation. Where it will lead is unknown. However, it is a moment that criminologists can only ignore at the risk of becoming irrelevant to the major questions facing the future of our society and the globe.