Regulatory morass has earned the ire of politicians, but legal experts warn that cutting red tape could leave a bastion of the democratic process out in the cold.
By Kelsey Reichmann, Courthouse News Service
Regulatory experts are raising red flags about a potential sea change in federal rulemaking that is being quietly implemented by the administration, giving President Donald Trump more authority to act without public input or accountability.
The Coalition for Sensible Safeguards, a nonprofit alliance of over 200 consumer, labor, scientific, research and public interest groups, found that Trump is trying to take more action quickly to limit effective oversight.
“In its unlawful and unprecedented push to cut the public out of the regulatory process, the Trump administration’s goal is ensure that the public will have no say when it rolls back regulations that protect them,” said Sam Berger, author of the report and consultant to the coalition.
Berger said that the same playbook from the administration’s attacks on the federal civil service and disregard for statutory spending directives is being used in federal rulemaking.
“If successful, this effort would come at a significant cost, removing an important form of public accountability, reducing transparency and depriving agencies of critical information that helps improve their decisionmaking,” Berger wrote.
Fool me once
Trump got well acquainted with the Administrative Procedure Act, or APA, during his first term, when the statute foiled many of his policy goals. Under the APA, agencies must follow specific guidelines, including providing notice and comment to the public, when altering federal rules.
“In the first administration, it was really unprecedented how much they were losing on APA procedural claims,” Daniel Walters, a law professor at Texas A&M University, said. “A lot of people attribute that to very sloppy lawyering … Well, they’ve really righted the ship the second time around, not by crossing all of their t’s and dotting all of their i’s. It’s by trying to make this really aggressive argument that they don’t have to do all of this stuff.”
Similar to his predecessors, on the first day of his second term Trump issued a stop-work order on all rulemaking to allow his political appointees to review any upcoming actions. However, since then Trump has broken with tradition, calling for a broad rescission of agency actions.
For every new proposed regulation, Trump ordered administration officials to find 10 existing rules to repeal. The president also tasked agencies with identifying regulations that were ripe for appeal in February.
In April, Trump ordered federal agencies to quickly purge seemingly unlawful regulations from the books, claiming to have the Supreme Court’s approval to ignore the typical period for public comment.
“Notice-and-comment proceedings are ‘unnecessary’ where repeal is required as a matter of law to ensure consistency with a ruling of the United States Supreme Court,” Trump wrote in an executive order. “Agencies thus have ample cause and the legal authority to immediately repeal unlawful regulations.”
Trump cited 10 rulings decided by the conservative majority, leading with Loper Bright v. Raimondo. The landmark 2024 ruling overturned four decades of precedent giving federal agencies deference over the interpretation of federal law.
Writing for the majority, Chief Justice John Roberts refuted his dissenting colleagues’ claims that Loper Bright would upend decades of rulemaking.
“The holdings of those cases that specific agency actions are lawful — including the Clean Air Act holding of Chevron itself — are still subject to statutory stare decisis despite our change in interpretive methodology,” the George W. Bush appointee wrote.
Trump declared otherwise, stating that the justices’ ruling required the repeal of rules that rely on “now-superseded Supreme Court decisions.” The “unlawful regulations” should be repealed without notice and comment, Trump said, claiming that doing so would be consistent with an exception in the APA.”
War on water pressure
The first target of Trump’s deregulatory regime was “the Obama-Biden war on water pressure,” aiming to “make America’s showers great again.” According to the president, previous administrations excessively regulated showerheads as part of the “radical green agenda.” Trump signed an executive order redefining “showerhead,” a move he said would restore sanity to federal regulations.
In the federal register, the administration cited the “good cause” exception to APA procedures, which allows agencies to bypass notice and comment requirements when impracticable or contrary to public interest.
The good cause exception is typically narrow, Berger said, applying in emergency situations where notice and comment would frustrate the purpose of the rule or cause harm to the public.
Trump plans to expand the good cause exemption, encompassing regulations that are “facially unlawful.” The regulations in question haven’t been reviewed by a court, Berger said, but instead are selected based on the agency’s revised view of the law.
“In these circumstances there is no emergency that requires dispensing with notice and comment; the only changed circumstance is the agency’s judgment regarding applicable legal standards, a view that itself would benefit from public comment,” Berger wrote. “Moreover, this type of justification for applying the good cause exception would present significant opportunities for abuse, since it relies only on an agency’s claims regarding its view of the law.”
Foreign affairs loophole
Regulatory experts say the administration is preparing to extend the lesser-known foreign affairs exception. In March, Secretary of State Marco Rubio issued a notice in the federal register broadening this exception to not only apply to immigration rules, but also tariffs and international trade.
The administration has yet to utilize the exception on a broad scale as agencies are still developing rules, however, Rubio’s notice was cited in the termination of parole for Cubans, Haitians, Nicaraguans and Venezuelans.
Because the administration considered the terminations as policy statements, they are exempt from notice and rulemaking requirements. However, the administration included an additional citation linking to Rubio’s notice to reinforce the exemption.
“Even if the changes were considered to be a legislative rule that would normally be subject to notice and comment rulemaking and a delayed effective date, these changes — like the implementation of the parole programs themselves — pertain to a foreign affairs function of the United States, and are exempt from such procedural requirements on that basis,” the government stated.
The foreign affairs exemption also appeared in the administration’s procedures for deciding if automakers qualify for relief from additional tariffs under the U.S.-Mexico-Canada Agreement.
Rulemaking in the fast lane
APA exemptions are just one area where regulatory experts say Trump could disrupt procedural checks on rulemaking. Agencies can issue interim final rules that ask for comments while immediately implementing the regulation.
On June 27, the administration issued an interim final rule that removes obstacles for imposing civil penalties for immigration-related offenses under the Immigration and Nationality Act. The Department of Homeland Security said that procedural hurdles like serving a notice of intention to fine and a 30-day response period were overly burdensome, costly and unnecessary.
“The revised process is intended to allow DHS to impose more civil penalties, more quickly, and in proportion to the sheer number of aliens who, in recent years, have unlawfully entered the United States and those who remain after a removal order or voluntary departure order,” the rule states. “DHS believes that this effort will, in turn, help deter future unlawful entries and encourage greater compliance with removal and voluntary departure orders consistent with this administration’s focus on securing the border and restoring integrity to our nation’s immigration system.”
To justify its immediate implementation, the department said the rule was a foreign affairs function that related solely to agency procedure and practice. The rule is accepting comments under an expedited 30-day schedule, instead of the typical 60-day period. The comment period ends on July 28.
Fundamental feedback
Regulatory experts warn that circumventing APA procedures will weaken public accountability and agency rules. Berger said that putting regulatory proposals in a public forum ensures that agencies are justifying and carefully considering concerns by relevant stakeholders.
“The public comment process allows affected parties to explain the impacts of a rule in their industry or community that may not be anticipated by the agency in a particular context,” Berger wrote. “Public participation also allows agencies to better understand the interests and views of impacted communities, including how they may weigh competing values that the agency is seeking to balance (and may weigh them differently than agency technical experts expect).”
Walters said that public comments on rules are fundamental to administrative law, providing one of the very few opportunities people have to give feedback to agencies as they consider rules.
“I would argue it’s one of the most democratic features of our government and to run roughshod over that is a big deal,” Walters said.
The administration’s efforts to circumvent the APA so far are a precursor to what could come down the pipeline in the coming months. The White House instructed agencies to complete its review of rules to be eliminated by Sept. 30.
Once the administration ramps up its regulatory cuts, experts say litigation challenging those actions will likely follow quickly behind.
