Donald Trump is making moves intended to seriously restrict the public’s input on government rules — and give the president more power to erase regulations unilaterally.
This push reared its head in an unlikely place this week; Trump issued an executive order Wednesday evening changing the definition of “showerhead” and said that it did not need to go through the typical notice and comment period associated with changing a regulation. His justification: Because he says so.
“Notice and comment is unnecessary because I am ordering the repeal,” Trump wrote in the order. (During Trump’s first term, the Energy Department also changed the definition of “showerhead” at Trump’s instructions — but they used “notice and comment” to do so.)
An hour later, a separate memo to executive agencies took the declaration a step further, arguing that public notice and comment aren’t necessary to repeal potentially thousands of regulations.
One more executive order Wednesday gave direction to quickly cut rules related to energy and environment — again circumventing the usual process — ordering agencies to attach “sunset” provisions to as many existing and new rules as possible to force them to quickly expire. Trump specifically listed regulations from long-standing laws governing nuclear waste, atomic energy, endangered species and mining among the many he wants to expire.
Legal scholars say rescinding rules with these justifications likely won’t stand up in court. Although courts have frequently split on when “notice and comment” can be skipped, those cases usually involve regulations that clearly violate the law or are created for emergencies.
“Their rulemakings need to be a product of reasoned decision-making based on an extensive administrative record, and both the sunset rule and the notice and comment memorandum just ignore all of that,” said Meredith Hankins, a senior attorney at the Natural Resources Defense Council.
But Trump’s efforts are part of a larger effort to expedite deregulation. The justifications in Trump’s orders seem to be “pushing on a few doors to get around notice and comment procedures just to see which door, if any, the courts allow to open,” Reed Shaw, an attorney with the left-leaning Governing for Impact, told NOTUS.
“There are these three discrete exceptions to notice and comment requirements under the [Administrative Procedure Act] that the administration is now applying incredibly broadly to try to remove a bunch of subjects from notice and comment,” said John Lewis, also at Governing for Impact, pointing to similar recent actions by Health and Human Services and the State Department to circumvent public input requirements.
In the notice and comment memo, Trump argued that anything agencies think goes against several recent Supreme Court decisions limiting the power of the regulatory state should fall under the “good cause” provision of the 1946 Administrative Procedure Act, which allows some rules to be tossed without public input.
Court decisions on the legality of that argument are likely years away, and eager-to-please agency heads could use the memo to stop enforcing all kinds of rules and regulations in the meantime.
“There are real fears that this could be interpreted aggressively and cynically, it could derail administered procedures that have existed for almost 80 years, and any judicial safeguards or backstops might not occur for a year, a year and a half — long after the politics have moved on to something else,” Craig Green, an administrative law scholar at Temple University, told NOTUS.
But ongoing legal fights over these administrative changes could actually increase the amount of time it takes to get rid of a rule compared to just going through the normal repeal process, said Cary Coglianese, an administrative law expert and founding director of the University of Pennsylvania’s Program on Regulation. And many regulated companies often prefer consistency over uncertainty.
Lawyers for the NRDC and the Sierra Club both told NOTUS that it was likely they would be involved in quickly challenging how agencies implement these orders. Both groups are still reviewing how they might be applied, but Hankins said that she’s already contemplating how these orders will quickly take up most of her time and energy in the coming years.
“The question is, do we wait until all of the agencies have issued those sunset rules? Or is there a way to litigate this all together?” Hankins said.
In the memo directing agencies to toss any rules that could be in violation of new Supreme Court precedents, Trump first referred to the ruling overturning Chevron deference — Loper Bright Enterprises v. Raimondo. In theory, the ruling takes away power from the executive branch, stripping agencies’ ability to interpret ambiguous laws. Trump’s memo, however, directed agencies to use it to overturn past rules.
Trump’s order is precisely what public interest groups feared last summer. In his majority opinion, Chief Justice John Roberts said the court does “not call into question prior cases that relied on the Chevron framework.”
Trump is doing just that — and cutting out public input from the process.
“He is trying to use Loper Bright as a mask or as a chess piece to try to push deregulatory policies,” Green told NOTUS.
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Claire Heddles is a NOTUS reporter and an Allbritton Journalism Institute fellow. Anna Kramer is a reporter at NOTUS.