Executive orders to repeal rules and change the definition of “showerhead” include a jarring assertion of presidential authority.
When an agency issues or repeals a rule, it must undergo a set of procedures laid out in the Administrative Procedure Act (APA). Among these procedures is notice and comment, which involves notifying the public of a proposed rule and allowing any “interested person” to submit comments. The President recently issued two executive orders in which he instructed agencies to repeal rules without these procedures, offering different justifications for the directive in each.
In the first, entitled “Directing the Repeal of Unlawful Regulations,” President Trump instructed agencies to identify potentially scores of regulations for repeal without with notice and comment.
On the same day, the President issued an order entitled “Maintaining Acceptable Water Pressure in Showerheads.” Citing the “Obama-Biden war on showers,” the President directed the U.S. Department of Energy simply to repeal the definition of the word “showerhead.” This fantastical order included a jarring statement: “Notice and comment is unnecessary because I am ordering the repeal.” The Department of Energy promptly issued a rule to repeal the Biden-era definition, explaining that it did not engage in notice and comment pursuant to President Trump’s directive.
The showerhead order and the Department of Energy’s subsequent rescission—one of potentially many coming rescissions—might seem insignificant. It is unlikely that many Americans will feel the impact of a changed definition of showerhead, for example, or that many felt deprived of the chance to weigh in on the change through notice and comment. But the order and the agency’s response, combined with the general directive to repeal rules without notice and comment, signal a striking expansion of presidential control of agency rulemaking.
In the two orders, the President provided different justifications for forgoing notice and comment. In the showerhead order, the President essentially stated: “Because I said so.” In the order directing the repeal of “unlawful regulations,” the President offered as more substantial legal bases several U.S. Supreme Court decisions and what is known as the APA’s good cause exception.
The Supreme Court decisions cited in the order to repeal rules, the President explained, “recognize appropriate constitutional boundaries on the power of unelected bureaucrats and restore checks on unlawful agency actions.” Relying on the Court’s holding in West Virginia v. EPA, for example, the President directed agencies to repeal economically or politically significant rules for which they did not receive “clear congressional authorization.” In invoking Loper Bright Enterprises v. Raimondo, the President directed agencies to unsettle existing interpretations of statutes that might not stand without Chevron deference, under which courts deferred to agencies’ reasonable interpretations of their statutes.
Perhaps most interestingly of all the justifications he provided, the President noted the APA’s good cause exception in the order to repeal rules. Although the President did not mention the good cause exception in the showerhead order, the Department of Energy viewed its repeal of the definition of showerhead as a just cause exercise, briefly mentioning the exception.
Under the good cause exception, an agency is permitted to forgo notice and comment if it finds that compliance would be “impracticable, unnecessary, or contrary to the public interest.” The President explained that retaining regulations that violate the Supreme Court’s recent decisions “is clearly contrary to the public interest” and that notice and comment is unnecessary if agencies want to repeal these rules.
Some have argued that the President’s invocation of good cause is a “win for the rule of law,” because if a rule is unlawful, of course agencies need not undergo notice and comment. If anything is “contrary to the public interest,” the argument goes, surely it is enforcing unlawful regulations.
But notice and comment often plays a critical role in helping an agency determine a rule’s lawfulness before it actually repeals it; commenters may point out to the agency that a rule lacks legal coherence, or maybe that the agency should rethink its interpretation of a statute. A rule’s unlawfulness is not for the President to unilaterally decide, and even agencies may appreciate input when making their determination.
Although the good cause exception is invoked with some frequency, the President’s reliance on it here is unusual in a few additional ways.
Notice and comment has been deemed “contrary to the public interest” most typically in emergency situations or when advance notice would otherwise defeat the purpose of the rule. The Attorney General’s Manual includes the guidance, for example, that notice and comment might be contrary to the public interest if it would enable market manipulation that a rule sought to prevent. This is a very different reason than the one the President asserted in his order to repeal rules: that notice and comment is contrary to the public interest due simply to his belief in the unlawfulness of some rules.
Notice and comment has also not usually been found to be “unnecessary” for the reasons the Administration suggested. “Unnecessary” usually refers to the issuance of a minor rule in which the public is not particularly interested and one that is inconsequential to members of the public and the affected industry. Although the Administration likely intends to repeal some inconsequential rules, many rules the Administration would repeal without notice and comment are likely to be ones in which the public is very interested.
The Administration’s reference to administrative law doctrines and the good cause exception are an attempt—though likely not airtight—to provide legal support for circumventing notice and comment. But the order still raises serious additional legal questions.
Notice and comment, a congressional mandate, is thought to promote public participation and the consideration of multiple views in agency decision-making. If the President alone could direct agency decisions, excessive regulatory changes from administration to administration could result. Without notice and comment, regulated entities would face more unpredictability due to hastily assembled regulations, sudden repeals, and a lack of notice.
The Administration’s attempt to reduce the need for notice and comment is striking also because it might lead to increased agency productivity, but the Supreme Court decisions it cited are all ones in which the Court constrained agency power. Indeed, the Court in Loper Bright bemoaned the “constant uncertainty and convulsive change” that resulted from deference to agencies’ reasonable interpretations of statutes. But agencies that function solely to implement the President’s agenda and are exempt from notice and comment will be more unconstrained and more likely to flip-flop than those required to follow procedures.
The likely answer to this conundrum is also telling about the broader purpose of the directive to forgo notice and comment, present both in the showerhead order and the order to repeal “unlawful regulations.” The President is not really concerned only with agencies’ power—he is concerned with agencies’ power to act independently of his will. It remains to be seen if the orders will stand in court when rules issued without the normal procedures are challenged. But the orders, for now, represent a forceful attempt by the President to bring agencies within his control.
