Latest news with #DirectingtheRepealofUnlawfulRegulations
Yahoo
14-07-2025
- Politics
- Yahoo
Opinion - Trump's shortcut rulemaking is shortchanging all of us
Regardless of political party, presidential administrations have traditionally abided by the bedrock American principles of transparency and accountability when it comes to federal agency rulemaking. The Trump administration is defying these principles. President Trump is rolling back longstanding protections using unlawful shortcuts that shortchange the public's right to provide input and understand how that feedback has shaped federal agency decisions. Enacted soon after the end of World War II, the Administrative Procedure Act outlines steps that federal agencies must take when they issue or amend regulations, also known as rules. Critically, this process includes soliciting and then responding to significant comments from the public, especially when those rules affect people's rights and responsibilities under federal law. The Trump administration has jettisoned this established approach to rescind bedrock legal protections for everyday Americans in the dark of night, with almost no explanation. President Trump signaled his plan to skirt established processes for rulemaking in a presidential memorandum issued on April 9, 'Directing the Repeal of Unlawful Regulations.' The memorandum accurately recognizes that a federal agency may use an expedited approach under the Administrative Procedure Act if it has 'good cause' to find that the usual process would be 'impracticable, unnecessary or contrary to the public interest.' Indeed, the Administrative Conference of the United States has recognized that expedited processes, such as direct final rules, are appropriate in some instances, such as when the proposed rule changes are noncontroversial. It further underscores the importance of public engagement whenever there is truly 'good cause' to use an expedited approach. However, the Trump administration is abusing this process by using expedited processes for changes that are clearly controversial. For example, in May, the U.S. Department of Energy issued four direct final rules related to nondiscrimination protections in federally assisted programs or activities pertaining to general programs, new construction requirements, nondiscrimination on the basis of sex in education and regarding nondiscrimination on the basis of sex in sports. This means that entities that receive federal funds from the Department of Energy will not have to provide interpretation and translation services when needed. They will not need to eliminate architectural barriers that make buildings inaccessible, nor will they be prohibited from engaging in activities that perpetuate the effects of discrimination. These direct final rules are part of a broader rollback of longstanding civil rights protections under Title VI of the Civil Rights Act of 1964 and other laws, which Trump previewed in his misguided and deceptively titled executive order on Restoring Equality of Opportunity and Meritocracy. The Department of Energy's direct final rules on nondiscrimination in federally assisted programs or activities fail the laugh test under the Administrative Procedure Act. As a comment recently filed with the Department of Energy by more than 40 law professors explains, 'The use of direct final rules in these contexts contravenes the clear language of the Administrative Procedure Act, ignores long-established procedures on notice and comment rulemaking, and undermines the role of public participation in government rulemaking.' Reinforcing this point, another comment filed by nearly 30 civil rights, environmental justice and environmental organizations, together with supporting individuals, underscores how the administration's approach 'violates the procedural mandates of the Administrative Procedure Act and subverts nondiscrimination principles that benefit all Americans.' In the end, the number of comments the Department of Energy received on its nondiscrimination direct final rules speaks volumes: 19,421 comments regarding nondiscrimination (general provisions), 20,711 comments regarding new construction requirements related to nondiscrimination, 9,293 comments regarding nondiscrimination on the basis of sex in education and 21,264 comments regarding nondiscrimination on the basis of sex in sports. So what's the harm in allowing the Department of Energy and other federal agencies in the Trump administration to bypass established procedures? The harm is to all of us — the American public. According to the Attorney General's Manual on the Administrative Procedure Act from 1947, the law seeks to ensure that federal agencies keep the public informed and engage them in rulemaking through uniform processes that are subject to judicial review. These goals remain as true today as they did nearly 80 years ago. As the United States commemorates the 250th anniversary of the American Revolution, we must remember our founding principles — that a government by the people and of the people must also be accountable to the people. We cannot let the Trump administration shortchange these goals. Sharmila Murthy is a professor of Law and Public Policy at Northeastern University who previously worked at the White House Council on Environmental Quality. Copyright 2025 Nexstar Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
The Hill
13-07-2025
- Politics
- The Hill
Trump's shortcut rulemaking is shortchanging all of us
Regardless of political party, presidential administrations have traditionally abided by the bedrock American principles of transparency and accountability when it comes to federal agency rulemaking. The Trump administration is defying these principles. President Trump is rolling back longstanding protections using unlawful shortcuts that shortchange the public's right to provide input and understand how that feedback has shaped federal agency decisions. Enacted soon after the end of World War II, the Administrative Procedure Act outlines steps that federal agencies must take when they issue or amend regulations, also known as rules. Critically, this process includes soliciting and then responding to significant comments from the public, especially when those rules affect people's rights and responsibilities under federal law. The Trump administration has jettisoned this established approach to rescind bedrock legal protections for everyday Americans in the dark of night, with almost no explanation. President Trump signaled his plan to skirt established processes for rulemaking in a presidential memorandum issued on April 9, 'Directing the Repeal of Unlawful Regulations.' The memorandum accurately recognizes that a federal agency may use an expedited approach under the Administrative Procedure Act if it has 'good cause' to find that the usual process would be 'impracticable, unnecessary or contrary to the public interest.' Indeed, the Administrative Conference of the United States has recognized that expedited processes, such as direct final rules, are appropriate in some instances, such as when the proposed rule changes are noncontroversial. It further underscores the importance of public engagement whenever there is truly 'good cause' to use an expedited approach. However, the Trump administration is abusing this process by using expedited processes for changes that are clearly controversial. For example, in May, the U.S. Department of Energy issued four direct final rules related to nondiscrimination protections in federally assisted programs or activities pertaining to general programs, new construction requirements, nondiscrimination on the basis of sex in education and regarding nondiscrimination on the basis of sex in sports. This means that entities that receive federal funds from the Department of Energy will not have to provide interpretation and translation services when needed. They will not need to eliminate architectural barriers that make buildings inaccessible, nor will they be prohibited from engaging in activities that perpetuate the effects of discrimination. These direct final rules are part of a broader rollback of longstanding civil rights protections under Title VI of the Civil Rights Act of 1964 and other laws, which Trump previewed in his misguided and deceptively titled executive order on Restoring Equality of Opportunity and Meritocracy. The Department of Energy's direct final rules on nondiscrimination in federally assisted programs or activities fail the laugh test under the Administrative Procedure Act. As a comment recently filed with the Department of Energy by more than 40 law professors explains, 'The use of direct final rules in these contexts contravenes the clear language of the Administrative Procedure Act, ignores long-established procedures on notice and comment rulemaking, and undermines the role of public participation in government rulemaking.' Reinforcing this point, another comment filed by nearly 30 civil rights, environmental justice and environmental organizations, together with supporting individuals, underscores how the administration's approach 'violates the procedural mandates of the Administrative Procedure Act and subverts nondiscrimination principles that benefit all Americans.' In the end, the number of comments the Department of Energy received on its nondiscrimination direct final rules speaks volumes: 19,421 comments regarding nondiscrimination (general provisions), 20,711 comments regarding new construction requirements related to nondiscrimination, 9,293 comments regarding nondiscrimination on the basis of sex in education and 21,264 comments regarding nondiscrimination on the basis of sex in sports. So what's the harm in allowing the Department of Energy and other federal agencies in the Trump administration to bypass established procedures? The harm is to all of us — the American public. According to the Attorney General's Manual on the Administrative Procedure Act from 1947, the law seeks to ensure that federal agencies keep the public informed and engage them in rulemaking through uniform processes that are subject to judicial review. These goals remain as true today as they did nearly 80 years ago. As the United States commemorates the 250th anniversary of the American Revolution, we must remember our founding principles — that a government by the people and of the people must also be accountable to the people. We cannot let the Trump administration shortchange these goals. Sharmila Murthy is a professor of Law and Public Policy at Northeastern University who previously worked at the White House Council on Environmental Quality.
Yahoo
29-04-2025
- Politics
- Yahoo
Opinion - Trump's most absurd executive order yet
On April 9, President Trump issued an executive order titled 'Directing the Repeal of Unlawful Regulations.' This document has mostly gone under the national radar, undoubtedly due to the ceaseless parade of headline illegalities pouring out of the White House. But the order's legal and practical implications are massive. Trump purports to rely on a series of Supreme Court rulings to justify ordering agencies to identify and 'begin plans to repeal' what he calls 'unlawful' regulations that are 'often promulgated in reliance on now-superseded Supreme Court decisions.' In short, he claims that any regulations that were put in place before the court issued rulings in a series of controversial cases are now automatically unlawful and must go. The myriad constitutional problems with this maneuver strike at the heart of the separation of powers. The order is also in line with the Republican Party's pro-corporate 'deregulation' agenda, which prominently began with President Ronald Reagan in 1981. Given the complexities of our system of government and its reliance on checks and balances and compromise, that agenda could not be fully achieved through lawful means. Then came Trump. For starters, the federal courts — not the president — have the authority under Article III of the Constitution to decide cases involving questions of federal law, including whether recent Supreme Court decisions undermine the legality of an existing federal regulation. Trump is pretending he has the power to issue a king-like proclamation condemning unidentified federal regulations as unlawful. Not so. He is not a federal judge. Moreover, Trump's order baldly impedes on the authority of the legislative branch. Regulations are created pursuant to statutes, which fall within the province of Congress. Although regulations function like statutes, the Supreme Court has long upheld agencies' power to enact regulations that function like statutes on the theory that the agencies themselves are creatures of Congress. So long as Congress includes an 'intelligible principle' guiding how agencies promulgate regulations, the court has concluded that it can give that power to agencies, even though they are housed within the executive branch, which is headed by the president. Because Congress creates agencies and sometimes gives them the power to enact regulations, the legislature has the exclusive power to enact statutes that override those regulations, as well. Trump does not. A final option for repealing final regulations (which number 3,000 to 4,000 per year) is for agencies themselves to do it. Congress has given agencies a list of procedures they must follow for enacting or repealing regulations. Those procedures are contained in a statute called the Administrative Procedure Act. Enacting or repealing regulations with the force of law (i.e., the ones that function like statutes) is laborious, requiring the agencies to give notice to and get input from the public, among other hurdles. A decision to enact or repeal regulations is also subject to legal challenges under the Administrative Procedure Act. (See point above about the exclusive role of the courts here.) So, for Trump to lawfully repeal what he deems 'unlawful regulations,' he must either go through Congress or invoke the Administrative Procedure Act's time-consuming process for repeal. If he chooses that latter route, he must then defend those repeals in the courts, which can take years to resolve. And if he doesn't like the tedium of the Administrative Procedure Act, which has been in place since 1946, he must persuade Congress to repeal or amend it. No Congress has been willing to do this in nearly 80 years, except to enhance executive accountability, as with the 1966 Freedom of Information Act. Trump's cynical team of lawyers offers a fig leaf of legal justification for this obnoxious turn of events. The 'good cause' exception to the Administrative Procedure Act's notice-and-comment process for repealing a regulation. The law basically says that a 'good cause' shortcut is permissible if 'the agency for good cause finds' that compliance with the notice-and-comment process would be 'impracticable, unnecessary, or contrary to the public interest.' Congress included this language mostly for emergencies — if there is a national health crisis involving imported chicken, for example, the Department of Agriculture might decide to invoke the good-cause exception to put rules on the books in a pinch, on the theory that waiting for the full process to play out would put public health at risk. But even if that's the case, agencies usually conduct full rulemakings after the fact in order to make sure that the regulations hit the right mark. Trump's executive order promises no such thing. To justify the good-cause exception, Trump's order asserts that 'retaining and enforcing facially unlawful regulations is clearly contrary to the public interest.' But this circular reasoning virtually obliterates Congress's careful process for rulemaking altogether. If a president can just declare regulations unlawful, then the good-cause exception can simply swallow up the Administrative Procedure Act's bigger requirements for notice and comment. There is no way Congress intended such a self-defeating result. What about Trump's power to issue executive orders — doesn't that give him the authority to do this? The Constitution says nothing about executive orders. Article II instead gives the president the 'executive power' and mandates that he 'take care that the Laws be faithfully executed.' Trump's order declaring the repeal of 'unlawful' regulations attempts to erase actual laws by presidential fiat. The Supreme Court has long made clear, however, that presidents cannot use executive orders to override or contradict legislation enacted by Congress. Presidents are not kings. They do not act by edict. Legally, they can only act pursuant to constitutional and statutory law. Trump's action does neither. For now, it will be up to Trump's loyal Cabinet — and whatever career federal employees still remain — to enact his edict by 'repealing' regulations that evince something on the list of disfavored features contained in the executive order. The courts will be asked to step in, and some will strike down the administration's actions. The Supreme Court justices may or may not back their colleagues on the lower courts, and Trump may or may not abide by those rulings. But in the meantime, Congress — and the country — must stop treating this as normal. Kimberly Wehle is author of the book 'Pardon Power: How the Pardon System Works — and Why.' Copyright 2025 Nexstar Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
The Hill
29-04-2025
- Politics
- The Hill
Trump's most absurd executive order yet
On April 9, President Trump issued an executive order titled 'Directing the Repeal of Unlawful Regulations.' This document has mostly gone under the national radar, undoubtedly due to the ceaseless parade of headline illegalities pouring out of the White House. But the order's legal and practical implications are massive. Trump purports to rely on a series of Supreme Court rulings to justify ordering agencies to identify and 'begin plans to repeal' what he calls 'unlawful' regulations that are 'often promulgated in reliance on now-superseded Supreme Court decisions.' In short, he claims that any regulations that were put in place before the court issued rulings in a series of controversial cases are now automatically unlawful and must go. The myriad constitutional problems with this maneuver strike at the heart of the separation of powers. The order is also in line with the Republican Party's pro-corporate 'deregulation' agenda, which prominently began with President Ronald Reagan in 1981. Given the complexities of our system of government and its reliance on checks and balances and compromise, that agenda could not be fully achieved through lawful means. Then came Trump. For starters, the federal courts — not the president — have the authority under Article III of the Constitution to decide cases involving questions of federal law, including whether recent Supreme Court decisions undermine the legality of an existing federal regulation. Trump is pretending he has the power to issue a king-like proclamation condemning unidentified federal regulations as unlawful. Not so. He is not a federal judge. Moreover, Trump's order baldly impedes on the authority of the legislative branch. Regulations are created pursuant to statutes, which fall within the province of Congress. Although regulations function like statutes, the Supreme Court has long upheld agencies' power to enact regulations that function like statutes on the theory that the agencies themselves are creatures of Congress. So long as Congress includes an ' intelligible principle ' guiding how agencies promulgate regulations, the court has concluded that it can give that power to agencies, even though they are housed within the executive branch, which is headed by the president. Because Congress creates agencies and sometimes gives them the power to enact regulations, the legislature has the exclusive power to enact statutes that override those regulations, as well. Trump does not. A final option for repealing final regulations (which number 3,000 to 4,000 per year) is for agencies themselves to do it. Congress has given agencies a list of procedures they must follow for enacting or repealing regulations. Those procedures are contained in a statute called the Administrative Procedure Act. Enacting or repealing regulations with the force of law (i.e., the ones that function like statutes) is laborious, requiring the agencies to give notice to and get input from the public, among other hurdles. A decision to enact or repeal regulations is also subject to legal challenges under the Administrative Procedure Act. (See point above about the exclusive role of the courts here.) So, for Trump to lawfully repeal what he deems 'unlawful regulations,' he must either go through Congress or invoke the Administrative Procedure Act's time-consuming process for repeal. If he chooses that latter route, he must then defend those repeals in the courts, which can take years to resolve. And if he doesn't like the tedium of the Administrative Procedure Act, which has been in place since 1946, he must persuade Congress to repeal or amend it. No Congress has been willing to do this in nearly 80 years, except to enhance executive accountability, as with the 1966 Freedom of Information Act. Trump's cynical team of lawyers offers a fig leaf of legal justification for this obnoxious turn of events. The 'good cause' exception to the Administrative Procedure Act's notice-and-comment process for repealing a regulation. The law basically says that a 'good cause' shortcut is permissible if 'the agency for good cause finds' that compliance with the notice-and-comment process would be 'impracticable, unnecessary, or contrary to the public interest.' Congress included this language mostly for emergencies — if there is a national health crisis involving imported chicken, for example, the Department of Agriculture might decide to invoke the good-cause exception to put rules on the books in a pinch, on the theory that waiting for the full process to play out would put public health at risk. But even if that's the case, agencies usually conduct full rulemakings after the fact in order to make sure that the regulations hit the right mark. Trump's executive order promises no such thing. To justify the good-cause exception, Trump's order asserts that 'retaining and enforcing facially unlawful regulations is clearly contrary to the public interest.' But this circular reasoning virtually obliterates Congress's careful process for rulemaking altogether. If a president can just declare regulations unlawful, then the good-cause exception can simply swallow up the Administrative Procedure Act's bigger requirements for notice and comment. There is no way Congress intended such a self-defeating result. What about Trump's power to issue executive orders — doesn't that give him the authority to do this? The Constitution says nothing about executive orders. Article II instead gives the president the 'executive power' and mandates that he 'take care that the Laws be faithfully executed.' Trump's order declaring the repeal of 'unlawful' regulations attempts to erase actual laws by presidential fiat. The Supreme Court has long made clear, however, that presidents cannot use executive orders to override or contradict legislation enacted by Congress. Presidents are not kings. They do not act by edict. Legally, they can only act pursuant to constitutional and statutory law. Trump's action does neither. For now, it will be up to Trump's loyal Cabinet — and whatever career federal employees still remain — to enact his edict by 'repealing' regulations that evince something on the list of disfavored features contained in the executive order. The courts will be asked to step in, and some will strike down the administration's actions. The Supreme Court justices may or may not back their colleagues on the lower courts, and Trump may or may not abide by those rulings. But in the meantime, Congress — and the country — must stop treating this as normal.
