How Trump orders seeking shortcuts in the regulatory process could expand presidential power

President Trump has sought to take shortcuts in the otherwise lengthy regulatory process via executive order that could mark a notable expansion in presidential power.

In recent weeks, Trump has directed federal agencies to withdraw various rules, sunset vast swaths of environmental protections and give regulatory exemptions to dozens of coal plants. Such moves would mean skipping the usual steps in the process of changing regulations, such as receiving feedback from the public and experts and undergoing a new rulemaking process to change the effective dates for a regulation.

Legal scholars described the orders as a "power grab."

In particular, one presidential order that directed the Energy Department to repeal regulations on showerheads last week contained what scholars characterized as a stunning sentence: “Notice and comment is unnecessary because I am ordering the repeal.”

“That is truly an extraordinary assertion of power,” said Max Sarinsky, regulatory policy director at the Institute for Policy Integrity at New York University’s law school.

Typically, federal regulatory and deregulatory actions have to go through a process known as notice and comment in which agencies propose a rule, allow the public to weigh in, and consider making adjustments based on the feedback they receive from the public.

“One goal of notice and comment is to ensure the agency has full information, both from regulated entities ... as well as the public and then experts,” said Carrie Jenks, executive director of Harvard University’s environmental and energy law program. 

Jenks said what Trump is asking the agency to do “looks like it would violate the Administrative Procedure Act,” which requires the notice and comment process.

For rules that are particularly controversial, the process normally takes months or years. But within a matter of days after Trump’s order, the Energy Department issued a final rule axing the Biden showerhead regulations.

"The White House is asserting the power, essentially, to regulate or to deregulate by executive order. That is novel," said Nina Mendelson, a law professor at the University of Michigan.

The Administrative Procedure Act does allow exceptions for “good cause,” but Sarinsky, who is also a former Biden White House official, said this typically applies to emergencies. 

“[It has] typically been used in like emergency situations or, for some reason, the immediate implementation rule was necessary to address some sort of immediate threat to public health or safety,” he said.

“There’s now decades of case law … and courts have emphasized generally that it should be used narrowly,” he added.

The effort is likely to be challenged, and it’s not clear whether it will be held up in court. 

Sarinsky described Trump’s effort as “blatantly illegal.”

Mendelson noted, however, that the Supreme Court may “have greater tolerance for political officials also exercising greater control over the details of agency decisions" given its recent decision that the structure of the Consumer Financial Protection Bureau gave too much power to an official who does not answer to the president.

But she said that if the courts allow a presidential order to be reason for skipping notice and comment, "the entire array of federal regulations would be open to rapid repeal.”

Meanwhile, Trump also sought to take another regulatory shortcut this week by directing agencies including the Environmental Protection Agency, Nuclear Regulatory Commission and Fish and Wildlife Service to “sunset” a wide range of regulations — potentially including those that go back decades. 

If the administration seeks to add sunset clauses without analyzing each individual regulation, "we could see, again, a radical reshaping of the regulatory ... structure in a very short time,” Mendelson said.

She said, however, that doing so would be “legally dubious."

“The courts have consistently said that changing the effective date of a rule requires a new rulemaking, because [the agency is] making a substantive change to the rule,” Mendelson said. 

Jason Schwartz, legal director at New York University’s Institute for Policy Integrity, agreed — and said that doing so would give the president significantly more power at the expense of Congress.

“It would be a real expansion of presidential power at the expense of Congress, which passed these statutes in the first place,” Schwartz said. “This would be a power grab at the expense of Congress, and it's a power grab at the expense of American people.”

Trump is also providing broad exemptions for coal plants to a Biden-era rule regulating toxic emissions as his administration seeks to reverse the rule.

Jenks noted that the rule will still apply for plants that were not on a list of those that received the exemption.

Overall, Jenks said that even beyond environmental issues, the Trump administration is “asserting a very aggressive executive authority.”