The Trump administration is repeatedly disregarding the notice-and-comment process normally required for creating or repealing regulations, raising alarms from those who say it’s sidestepping safeguards against arbitrary and ineffective government action.
The rules impacted so far involve policies ranging from creating a new immigration police force to the Agriculture Department dropping the consideration of race and sex for awarding loans, grants, and benefits.
In one case, President
Agencies have offered justifications for circumventing the normal notice-and-comment process to quickly get their policies in place. Those efforts to streamline rulemaking are part of the administration’s disruptive approach across the government, but seem more haphazard and spread across disparate agencies than the product of a widely adopted, systematic plan.
Nevertheless, the moves still break with recognized best practices and sometimes appear to violate federal law, according to administrative law scholars. Dodging notice-and-comment because the president said so, for example, clearly falls short of what the law requires.
“The Trump administration is trying to fundamentally reshape what notice-and-comment rulemaking is by fiat,” said Sharmila Murthy, a Northeastern University law professor.
The standard regulatory procedures, while onerous and time-consuming, allow for companies and other members of the public to weigh in on possible rule changes within a 30-to-60-day window. Such longstanding requirements—including agencies’ duty to respond to outside input—are meant to promote a more informed, accountable, and democratic rulemaking process and improve the final regulations.
They also give businesses time to brace for new rules they’re supposed to follow. Skipping notice and comment, which can yield thousands of pages of input and information the government wouldn’t otherwise know about, closes agencies off from expertise as they create rules that can put billions of dollars at stake and send companies scrambling to comply.
The Administrative Procedure Act, a 1946 law that dictates the government rulemaking process, includes exemptions to its notice-and-comment mandates to allow for swifter regulatory changes.
The Trump administration has aggressively deployed those exemptions. For example, Trump told agencies they need not seek public input when repealing rules that they interpret as violating the rulings in 10 US Supreme Court precedents, claiming it would be unnecessary and against the public interest to go through the normal process.
“What we’re losing, to some extent, is just democracy,” said Thomas McGarity, an administrative law professor at the University of Texas. “Democracy is voting once every four years, or two years, but it’s also participating in agency decision-making.”
The White House didn’t respond to requests for comment on its approach to notice-and-comment rulemaking.
Immigration to Loans
Project 2025, a compendium of conservative policies that’s helped guide Trump’s second term, didn’t specifically advocate for turning away from notice-and-comment rulemaking. Several of the document’s proposed regulatory changes call for inviting public input.
For example, it called on the Labor Department to go through the standard rulemaking procedure to reinstitute a regulation making it harder for agencies to issue guidance.
But the administration has repeatedly turned in the other direction.
Secretary of State Marco Rubio set the stage for fast regulatory action in March by declaring agency efforts to control the border or immigration qualify for an APA exception to public notice and comment because they concerned foreign affairs functions.
The US Citizenship and Immigration Services also invoked an exception when it published a rule to create an armed police force to investigate immigration violations. The agency said it was just a matter of procedure to delegate the Homeland Security secretary’s authority to the USCIS director.
The Department of Agriculture cited an APA exception for rules related to public property, loans, grants, benefits, or contracts when it decided to drop the race- and sex-based “socially disadvantaged” designation for more than a dozen loan, grant, and benefits programs.
While the APA expressly includes that exemption, most major agencies committed to going through full notice-and-comment procedures for regulations involving property, loans, and grants.
The Agriculture Department, however, abandoned that pledge in 2013. This year, so did the Department of Health and Human Services.
‘Outlier’ Agency
The Trump administration’s moves to dodge the notice-and-comment process so far have come in a patchwork of disconnected cases across agencies, except for one.
“The Department of Energy is an outlier,” said Ronald Levin, an administrative law scholar at Washington University in St. Louis.
It was DOE that eschewed notice and comment when it repealed the Biden-era regulation on showerhead water flow based on Trump’s order.
The department also followed through with Trump’s command to summarily dump regulations that violate certain Supreme Court rulings when it issued a final rule in May to eliminate a rule governing a program for providing loans to minority-owned businesses.
The agency said that the program conflicts with Students for Fair Admissions v. Harvard, the high court’s 2023 decision ending race-based affirmative action programs in college admissions.
DOE later argued in a subsequent notice delaying the rule’s effective date that the standard rulemaking process wasn’t necessary because the measure at issue was procedural.
The Energy Department’s streamlined rulemaking efforts also include an innovative use of direct final rules. Normally, agencies fall back to the standard process—beginning with a proposal meant to invite constructive feedback—if a direct final rule draws negative feedback.
Under Trump, the agency has skipped the interim steps, rejecting the possibility of altering those rules. Instead, in multiple cases, it’s issued final rules and chosen one of two paths when it gets negative feedback: withdraw the measures entirely or reissue new final rules that attempt to respond to the criticism.
The agency issued about a dozen direct final rules in May involving topics ranging from the contractor employee protection program to its system for resolving employee disputes and the Strategic Petroleum Reserve.
It also used four final rules to rescind aspects of regulations involving nondiscrimination, such as measures to prevent bias in federally assisted programs and activities.
When the department invited comment on those four rules to weaken anti-bias protections, more than 70,000 responses flowed in.
One was a letter signed by nearly 50 law professors, including Northeastern’s Murthy, that called the agency’s use of the direct final rules “woefully inappropriate” and urged it to follow standard process.
The department has since withdrawn one of those rules and delayed the effective date for the other three until December.
Representatives for the DOE didn’t respond to requests for comment.
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