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.