Speeding Up the Deregulatory Process

Experts question the legality and wisdom of the Trump Administration’s plan to speed up agencies’ deregulatory efforts.

During his first term as President and subsequent time as a presidential candidate, Donald J. Trump pronounced his support for efforts to roll back what he has characterized as “job-killing” regulations. After taking office in January for his second term, President Trump has signed several executive orders aimed at reducing regulatory burdens on industry. One of these orders calls for agencies to identify 10 regulations to eliminate for each new significant regulation they plan to adopt. Another order directs agencies to reconsider the statutory foundations for their rules and to rescind those regulations that agencies now consider lacking in adequate legal support.

In coordinating President Trump’s deregulatory agenda, the White House Office of Information and Regulatory Affairs (OIRA)—an office situated within the larger Office of Management and Budget (OMB)—recently issued a memo calling for the “streamlining” of agencies’ deregulatory actions. In this memo, Acting OIRA Administrator Jeffrey Bossert Clark, Sr., has lamented what he views as “significant costs associated with the ossification of the regulatory process, which slows down agency action and ultimately places significant burdens on this Administration’s agenda.”

Clark’s memo states that OIRA is “committed to streamlining this process to pave the way for deregulation.” Specifically, the memo outlines a series of steps aiming to speed up the rulemaking process for actions that would lessen regulatory burdens or rescind existing regulations altogether. These steps include a shortened timeframe for OIRA review of deregulatory actions, presumptive waivers of various analytic requirements that would ordinarily apply when agencies seek to adopt or modify rules, and a willingness on OIRA’s part to hold “early and substantive discussions” with agency staff on deregulatory action.

The Clark memo also notably encourages agencies to short-circuit the normal notice-and-comment rulemaking procedures for deregulatory actions when the agencies now find that existing rules lack an adequate statutory basis. Reinforcing President Trump’s Executive Order 14,219, the Clark memo states that “where the agency is convinced that the regulation is unlawful and that position has a reasonably good chance of success on the merits, the regulation should be repealed.” In these circumstances, the memo encourages agencies to forgo the normal notice and comment practices required by the Administrative Procedure Act (APA), seeking instead to act “as expeditiously as possible on legal grounds to bypass notice and comment under the APA’s ‘good cause’ exception.”

The Clark memo has prompted varied reactions by legal scholars and regulatory experts, some of whom have seriously questioned the legality or wisdom of circumventing normal rulemaking practices. In this series, The Regulatory Review features commentaries on the Clark memo by three distinguished regulatory experts: Susan E. Dudley of The George Washington University; Daniel Farber of the University of California at Berkeley; and Stuart Shapiro of Rutgers University.