Full Title: Preventing Public Participation: The Trump Administration’s Misuse of the Good Cause Exception to Fast-Track Deregulation
Author(s): Jack Jones and Max Sarinsky
Publisher(s): Institute for Policy Integrity - New York University School of Law
Publication Date: April 23, 2025
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Description (excerpt):
As explained in Part I, agencies cannot use good cause broadly to rescind regulations that they now purport to be unlawful, without first going through notice-and-comment rulemaking. Simply because an agency believes a prior rule is improper does not mean there is not extensive value in public comments, as comments may shed light on relevant legal issues, highlight important factual issues or reliance interests that the agency must consider, or propose alternatives short of full repeal that the agency must assess. This is confirmed by judicial caselaw, which interprets the good cause exception narrowly and finds it does not apply simply because an agency believes a prior rule may be unlawful. Nor can agencies claim that failure to engage in notice-and-comment rulemaking is harmless error in these circumstances, as courts have construed the harmless-error standard very narrowly in the context of failure to engage in legally required public comment processes.
As explained in Part II, a presidential directive—as in the case of DOE’s showerhead rule— also does not circumvent the need for public comment and reasoned decisionmaking. Although the president is not personally subject to the APA, agency actions directed by the president are. Accordingly, they must follow all of the APA’s procedural and substantive requirements—including both notice and comment and meaningful consideration of relevant facts and circumstances including those in relevant prior agency actions. If accepted, President Trump’s broad assertion of directive authority could render the APA a dead letter by allowing presidents to get around it simply by directing agencies to take otherwise discretionary actions.
Finally, as explained in Part III, administrative suspensions are also APA rulemakings subject to the statute’s procedural and substantive requirements. Courts have struck down prior suspensions for failure to engage in notice-and-comment rulemaking or provide reasoned analysis for the suspension that meaningfully grapples with the underlying rulemaking record.