A new form on the Federal Register and newfound constitutional power would make it easy to deregulate.
On April 9, President Trump issued an executive order instructing the Department of Energy to rescind its regulations defining “showerhead.” The notion that the president would devote time and energy to something as mundane as showerheads is laughable. Yet the final rule implementing this executive order raises significant concerns that the Trump administration will seek to deregulate without following the traditional procedures and processes used to promulgate, amend, and rescind regulations.
Two recent events suggest that the Trump administration intends to expeditiously rescind existing regulations: (a) a constitutional argument that the president has authority to unilaterally rescind regulations without following the requirements of the Administrative Procedure Act and (b) a new online form that seeks to crowdsource the process of drafting these rescissions. When stitched together, the Trump administration has created a toolkit to rescind regulations without the required procedures of the Administrative Procedure Act or the involvement of the experts who understand the purpose of these regulations.
A Unilateral Authority to Rescind Regulations
Ordinarily, an agency must follow the same procedures under the Administrative Procedure Act to promulgate, amend, or rescind a rule. Those procedures include providing notice in the Federal Register and an opportunity for interested parties to comment on the regulations. The Department of Energy did not follow these procedures. In a final rule that will go into effect on May 15, Energy explained that it was foregoing notice-and-comment rulemaking in light of the executive order and “the President’s constitutional authority to direct rescissions of regulations.”
Article II does not authorize the president to unilaterally rescind regulations. Congress usually delegates rulemaking authority to the agency—not the president. Some proponents of unitary executive theory argue that presidents have directive authority that allows them to instruct agencies to take certain regulatory actions. Directive authority, however, does not necessarily mean the agency gets to ignore the Administrative Procedure Act when carrying out the president’s commands.
Does any authority support the Trump administration’s argument? Maybe. The president himself is not subject to the Administrative Procedure Act. In Sherley v. Sebelius, the U.S. Court of Appeals for the D.C. Circuit suggested that an agency was subject to lesser procedural requirements when directed to take an action by the president. The court held that the agency was not required to address certain comments “diametrically opposed to the direction of” the executive order because the agency “must implement the President’s policy directives to the extent permitted by law.” Sherley has received significant criticism, and the U.S. Court of Appeals for the Ninth Circuit has demanded more of the president as a procedural matter.
Nevertheless, extending the holding in Sherley to allow agencies to completely forgo notice-and-comment procedures when the president issues an executive order would render those procedures meaningless. Presidents often seek to roll back regulations promulgated by previous administrations. Agencies could skip notice-and-comment procedures on the most politically significant rules by simply asking the president to issue an executive order commanding the agency to rescind the rule. Politically significant rules are those that deserve the greatest opportunity for public comment. Congress cannot have intended this sort of workaround to the Administrative Procedure Act. In sum, the Trump administration’s claim of a unilateral authority to rescind regulations rests on weak constitutional and statutory grounds.
Crowdsourcing Regulations
Even if the Trump administration manages to evade notice-and-comment procedures, deregulation does not come easily. The administration must identify which regulations to rescind. Moreover, the administration must have sufficient resources (that is, federal employees with sufficient knowledge and expertise in the agency’s regulatory process) to draft and publish the recissions. As I have shown elsewhere, presidents need the resources and capacity provided by the federal workforce to effectively implement their policy agendas. The Trump administration’s effort to remove a substantial portion of the federal workforce threatens that deregulatory goal.
Rather than rely on the federal workforce, the Trump administration seeks to crowdsource its deregulatory efforts. This week, the General Services Administration added a new page to Regulations.gov. That page invites the public to submit “ideas for cutting existing rules or regulations.” What is noteworthy about this form is exactly how much information it requests. The form requests the name of the agency that promulgated the regulation, the specific sections of the Code of Federal Regulations that should be rescinded, and the address and contact information of the agency. It even instructs individuals about where to find this information. For the contact information, the form says, “This information can be found on the most recent agency rulemaking.” Why would a form request basic information that the agency itself would obviously have?
The form, however, does not simply collect a list of rules that the administration should consider rescinding. It expects the individual to provide an explanation of why the administration should rescind the regulation. It asks, “What is the background for the regulation being rescinded?” It instructs, “You should discuss the current state of the regulation, how it operates, and its history. A high level of detail is preferred.” The request for a high level of detail illustrates how much information the agency wants the individual to provide.
Two of the most alarming sections, however, ask for the analysis that the agency would typically provide. When rescinding an existing rule, the agency must provide sufficient information to demonstrate that its rescission “was the product of reasoned decisionmaking.” If the agency fails to provide this information, a court may vacate or remand the rescission as arbitrary and capricious.
The Trump administration expects the public—not the agency—to perform this reasoned decisionmaking. Individuals are instructed to “explain the reasons for the recission.” It explains:
This is the analysis part of the rule. You should provide as much detail as possible. Possible reasons for rescission include, but are not limited to: (1) the regulation is inconsistent with a statute; (2) the regulation is inconsistent with the Constitution; (3) the regulation’s costs outweigh its benefits; (4) the regulation no longer reflects the current state of technology; or (5) the regulation is bad policy, unreasoned, or unsound. If this is a final rule, you should respond to any relevant and timely comments. If there are other requirements for repealing a rule, please address those here.
Moreover, some of the language in this paragraph is bizarre. It says, “If this is a final rule, you should respond to any relevant and timely comments.” What comments would a member of the public submitting a recommendation respond to? Another question asks the individual to “[d]escribe the text of the relevant C.F.R. provisions as it will exist after the rescission.” The agency expects the public to rewrite the regulatory text for them. Drafting regulatory text is no simple feat—even for someone with legal training.
The form demands an incredible amount of detail. Specifically, it demands precisely what an agency must provide to the Federal Register when publishing a final rule. This form is not a comment box. It is a method for the administration to crowdsource deregulation. Coupled with the Trump administration’s willingness to evade notice-and-comment rulemaking, this form may enable lightning fast—and likely unlawful—rescissions of existing regulations.
Where did this form come from? A key omission suggests one possibility. The Paperwork Reduction Act requires agencies to receive approval from the Office of Management and Budget (OMB) to engage in information collecting activities (for example, creating new forms). Approved forms receive an OMB control number. Electronic applications are not exempt from the Paperwork Reduction Act. This form does not appear to have an OMB control number, which suggests it may have been added to Regulations.gov by someone who recently joined the administration, such as a member of the Department of Government Efficiency (DOGE). The failure to follow proper information-collection procedures raises concerns that the person managing this project may not actually understand rulemaking procedures.
In the abstract, collecting suggestions from the public about which regulations to rescind promotes democratic participation and accountability. Leveraging the expertise of the private sector to aid in the drafting of regulations makes some sense. Indeed, a central goal of the Administrative Procedure Act is to encourage public participation in the regulatory process.
That said, the Trump administration may be taking public participation too far. Rather than rely on the expertise and experience of individuals who work in the agency, it has begun asking the public to draft regulatory rescissions. The form raises questions about whether the Trump administration will engage in the sort of reasoned decisionmaking envisioned by the Administrative Procedure Act or whether it will simply publish the public’s proposals without much oversight or any opportunity for the broader public to comment on the proposed rescission. Without additional oversight, public drafting of regulations and recissions opens up the rulemaking process to capture.
Combining Deregulatory Tactics
Efforts to evade notice-and-comment procedures combined with the crowdsourcing of draft rescissions raise significant concerns. The administration could seek to rescind regulations quickly without meaningful oversight from either the agency or the broader public.
The form provides no indication of how the administration intends to use the information it collects. Yet one can imagine some worse-case scenarios. Submissions may be reviewed by someone with no actual knowledge of these regulations or the law. Federal regulations are dense and interlocked. Rescinding some provisions of the regulations without considering the effect on other provisions may result in a patchwork system of regulations. Accepting the public’s proposals without notice-and-comment procedures or oversight from the agency may cause some areas of regulation to become legally unworkable.
In the worst-case scenario, the administration uses these forms to automate the process of rescinding regulations. Information collected by the form may be used to generate final rules that the agency publishes in the Federal Register without much oversight. In ordinary times, the idea that an agency would simply publish a final rescission drafted by a member of the public without any additional oversight or public comment would be unfathomable. Yet the Trump administration has sought to automate many government processes—often leading to disastrous consequences. DOGE has promised to “improve” government operations through novel technologies, such as artificial intelligence. In this case, those technologies may harm the coherence of regulatory law.
This is not a story about deregulation per se. I would also find the idea of skipping notice-and-comment procedures and shifting the onus of drafting regulations to the public equally concerning if the administration sought to impose new regulations. Rather, this is a story about how the lack of procedure threatens accountability.
Democracy requires public participation in the rulemaking process. Yet that participation should come from all interested parties—not just the individuals most interested in seeing certain regulations rescinded. Moreover, many statutes enacted by Congress mandate the passage of these regulations. The agency itself remains accountable to the laws enacted by Congress. To be clear, I have no qualms with the public suggesting proposed rules or proposed rescissions. Yet accountability requires those proposals to receive adequate critique from the broader public and the agency. Accountability requires greater adherence to the traditional procedures used to promulgate, amend, or rescind regulations than simply crowdsourcing ideas for deregulation without further notice-and-comment procedures.
– Nicholas Bednar is an associate professor of law at the University of Minnesota Law School. He writes in the areas of executive politics, administrative law, and immigration. He holds a PhD in political science from Vanderbilt University and a JD from the University of Minnesota Law School. Published courtesy of Lawfare.
