For Trump Administration, It Has Been Hard to Follow the Rules on Rules

The Supreme Court will rule the Census Bureau can add the citizenship question to future census forms. The Census Bureau has asked the question on census forms many times. It was last asked in the 2000 census when it appeared on the long from. If asking the citizenship question did not violate the Administrative Procedure Act of 1946 when it was asked on the 1950 census, how could asking it on the 2020 census form violate the Administrative Procedure Act?

Obviously this “arcane” law could not anticipate the internet and its most vital tool Twitter. The law should be changed to recognize that the most efficient and sensible way for the U.S. Govt. to implement and change policy is via spontaneous rage tweeting by POTUS.

One thing I think Ms Sanger-Katz misses is the fact that agency regulations are supposed to be reviewed by OMB's Office of Information and Regulatory Review for the quality of their analysis and conformance to APA requirements. It's interesting to note that the head of this office has apparently done such a great job that she, Neomi Rao, has been nominated to serve on the DC Circuit Court, the court which routinely would review most challenges to agency actions. I'd assume that President Trump wants her in that position so she can continue her exemplary work in keeping agencies in line.

The Administrative Procedure Act is far from arcane; it is the foundation of how government agencies are supposed to operate. When you consider how much is done by federal agencies (as opposed to Congress) that touches your life, having basic ground rules and a mechanism for oversight of those agencies is essential.

As someone who worked on federal regulations and notices for over ten years, I can tell you that the process is not rocket science - notice and comment are at the heart of it. Additionally federal agencies have the benefit of "Chevron deference," which referred to a Supreme Court case that limited judicial review and gave deference to agencies when they are promulgating their regulations. The Supreme Court has now limited that deference and reasserted judicial review, so more court challenges can be expected, but even with that, the incompetence of this administration in the promulgation and management of federal regulations is inexcusable.

I wouldn’t call the Administrative Procedures Act an “arcane 1946 law.” It’s fundamental to the operation of all federal agencies, and (as the article notes later) has been constantly updated since it was originally created.

On February 1, Attorneys for the FCC and Attorneys representing Mozilla (as lead plaintiff for a number of public interest and industry groups and several states) will face off before a three-judge panel of the DC Circuit Court of Appeals. The issue is whether the FCC's "Restoring Internet Freedom" (sic) Order, overturning previous rules that ensured Network Neutrality, among other (and arguably more important) things. The APA instructs the court to answer a legal question: was the FCC’s course reversal in 2017 “arbitrary, capricious, an abuse of discretion… in excess of statutory jurisdiction, authority, or limitations, or short of statutory right… without observance of procedure required by law… or unwarranted by the facts.…” I expect that the answers to these questions will be a resounding “Yes”. This is another example of a Trump appointee (FCC chairman Ajit Pai) making unforced errors under the APA. The plaintiffs' and intervenors' briefs present a litany of reasons, too long to summarize here. As an industry analyst and engineer, I nearly choked on their blatantly counterfactual justifications. Several commenters bemoaned the fact that high school civics classes don't cover regulation and the APA. +1. Citizens really do need to know this stuff. At least the kids get to read "1984". Recognizing doublespeak is equally important to understanding this Administration's pathetic regulators.

“I think there was a lot of corner cutting by the administration,” said Josh Blackman no, they simply didn't care for the rule of law. Their glee at overturning anything Obama did couldn't be contained and they thought all they'd have to do is issue a different rule. In their view gov't is just the whim of the head banana. You know, like any banana republic

Well, maybe that is all past us now?? If Trump wins this shutdown battle, he can shut the government down any time he wants! There goes any chance of managing regulations to protect health or the environment, for example. McConnell will of course back Trump, as will the Kavanaugh Court (as it can hardly be regarded as the Roberts court any more). How is that still a three-part, coequal branches of government? We are very far along the road to a Trump dictatorship.

This "arcane law" may be the only thing keeping Trump from become the PUTIN of America instead of POTUS. Thank God they are a sloppy and lazy bunch in the Executive Branch. Can you imagine what they might do if they were actually intelligent?

When will someone bring a suit against Trump for incompetence?

I've noticed that most criminals have a hard time following the law.

The donor Republicans hate regulations but most of those regulations protect the public. Obama used the legislative process to pass the ACA and FDR used it to pass SSI, and they didn't shut down the government as Trump and McConnell have. This is an affront to our rule of law and democratic process.

If we paid more attention to how the Administrative Procedure Act, we'd have less tolerance for Republican Party nonsense about how and why regulations are put in place. This article reminds people of how, but let's think a bit more about why. Statutes passed by Congress don't and should not contain too many empirical parameters. Law needs to be clear about principles but should require that administration rationally fill in and adjust parameters (which is where the "how" of the Act comes in). In some countries, as I understand it, a statute is not even applicable until its implementing regulations have been put in place. So, two cheers (anyway) for regulations. They beat having everything written into statutes that can only be changed by Congress.

Is there an accounting of the Trump administration rules that have been stayed so far? And whether they was an attempt to comply and if they were resubmitted? That would be helpful and informative.

Sanger-Kotz has an excellent history writing about health related regulations. This piece is superb. I disagree with Bagley that the reasons for Trump's frequent failed attempts are because of haste and ineptitude. After over two dozen major failures Trump and his minions would act smarter, if haste and ineptitude were the only major reasons. Trump's a big mess of arbitrary impulses, and that they are guided primarily by egotism and malevolence.

Judges, too, can be arbitrary and capricious.

Not surprising that our president and many of the heads of government agencies are former business executives who had little to no oversight when they issued edicts that had significant effects on the company. Of course they don't like this law but consider that it was passed when we had a president who liked to make sweeping changes without much oversight - hence the law is now on the books. What a concept - the executive and heads of government agencies cannot simply change the rules and regulations without any oversight. How vexing, how limiting, how... American. Our government is not made up of Royals who can do whatever they want whenever and wherever they want. Laws rules and regulations belong to We-the-People as we don't like people thinking they can change them on a whim. Nope, doesn't work that way - thankfully. As to those who chafe at being constrained I'll offer the sage advice I got from an Uncle when I fussed and fumed about the rules at home: "Go suck a lemon!"

One would think they would get it after one or two gaffes. This is a most incompetent administration, but I'm not complaining because their ineptitude has prevented them from doing some very bad things regarding immigrants and other matters. I guess this is what we get when an inept and unpopular president is elected. No one in his/her right mind would work for him now. Thousands of positions are unfilled and the usually slow governmental process is down to a crawl.

If you're a Trump supporter and you've just read this article the upshot is that Trump says one thing and does another. All of these attempted changes by the Trump administration are aimed at regulations that help big business at the expense of average Americans. Our environment is especially besieged by these changes. Don't kid yourself into believing the Republican dogma that these regulations hurt businesses. When Obama left office two years ago the Fortune 500 was rolling in cash. So exactly what pain did the Trump administration cite when making the case to upend various regulations? Economic pain. Then, using the same dubious justification, Trump went on to sign a tax cut for corporate America that dropped their rate from 35% to 21% (and the deficit increased almost immediately). Who's gonna pay for the wall? You. And you're also going to pay for all these other seemingly small changes that Trump hoisting onto average Americans in the name of stimulating an overstimulated economy.

Trump's approach to rules has always been "sue me if you don't like it." That continues to be his approach as President. Trump's oath was in part to "faithfully execute the Office of President." There is no "to the best of my ability" phrasing. which does precede his obligation to preserve, protect,and defend the Constitution." It is an unequivocal requirement. As President, he is the chief law enforcement officer and is duty bound to ensure that the laws are obeyed, thus, ipso facto, he too must obey the laws. Trump consistently violates his oath of office.

Trump and his henchmen are lazy. They could comply with the APA, but they don't bother to. Which is a good thing. If they were more careful, things in this nation would be a lot worse even than they are today.

This was a good explanation of how the Administrative Procedure Act works. It's a major protection against arbitrary actions by the Executive Branch. I suspect that Trump appointees, early on, did not trust career civil servants who tried to explain regulatory procedures under the APA.

I think the main issue that we have been seeing especially since the Bush II era, is the shopping around for a judge or a court that will side with your desired judicial outcome. This is very bad for the Republic as it means that the courts are no longer the arbiter of legislation, but a political extension of the two parties or their extreme ideological wings. Only "We the People" are the losers in such an environment as legislation, rules and regulations get rewritten every 4 or 8 years.

It's as if the Trump people -- few of whom have any idea what the are doing ("I worked at Fox News," "I was a surgeon and now I run HUD") -- truly do think they can have carte blanche. Thank God for wise framers of the Constitution and legislators since then who anticipated that maybe someday there might be a true lunatic. Sad for us that WE got him!

You have to care about the law, or fear it’s enforcement. Neither probable under Republican gridlock.

The basic idea of administrative procedure should be included in any civics instruction, along with the three branches, "checks and balances," and the ideas of representation and of civil rights. The 20th Century "administrative state," with all its limitations and flaws, isn't just arbitrary, but was designed to assist capitalism, to inform the public, and to make the best use of available information. I have strong political opinions. But this isn't about that. It's about just plain citizenship.

The root of the problem here is that Congress has abdicated its responsibility to make laws to the army of faceless, unelected bureaucrats by passing vague legislation and letting the details be worked out by the regulatory agencies. It is time that Congress, in some form retakes its position of making the rules under which we live. I understand that every little detail cannot be written into law, however, I suggest that no rule go into effect until it is approved by Congress. The agencies could bundle the rules into a package and have them voted on once a month, for example. No debate, just yea or nay on each rule. That way, any rule which goes into effect has been approved by a majority of our representatives and we can see who is supporting or opposing each regulation.

It could be sheer incompetence of this administration, coupled with hubris. There is a reason rule making has a process and procedure. As to the current administration, having 28 of 30 rejected is a record for two years. Congratulations.

I used to hate the Roberts Rules of Order until I became the president of an organization. There's a good reason why we have laws, rules, and regulations on important issues. It levels the playing field and takes out the emotions and individual agendas to deal directly with the issue. It pays to know what you're doing.

Thank you for writing about this and the risks of "arbitrary governance." People like to denounce government rules but they are there for a reason. I recently read that it's also a core principle of economics that "institutions" like property rights, political stability, the rule of law, and stable prices are vitally important for economic growth. Trump has attempted to trounce every one of these, including property rights as he threatens to use eminent domain at the border. And, even if he doesn't succeed, just knowing that he aims to do so has caused tremendous upheaval. The long-term effect of this, per the economists, is slower growth to the point of a nation falling drastically behind over time. I hope the Times writes more about this. Republicans who pretend to care about economic growth are ignoring these critical factors. Or, maybe they've decided to take all the short-term gains they can and let a Democrat (who will be elected in 2020) take the blame as the fallout becomes real. Either way, the GOP is doing a great disservice and the more the Times calls them out on this, the better.

One effect of the Anti-Deficiency Act shutdown of some departments is that agency lawyers and other employees must not work on the analysis required to move a rulemaking (unless working on it during the funding lapse is necessary to save lives or protect property).

Professional staff lawyers are responsible for carrying out the policies of their politically appointed leaders. Did the administration tell them to ignore the law or were these lawyers purposely sabotaging the administration's agenda?

The courts have certainly helped overturn many of this administration’s assaults on the environment and immigration. Thank goodness! I sure wish they could help out with the Affordable Care Act.

Thank goodness we have some shock absorbers built into our system of rules and regulations. These and the good intentions of most career government employees are providing some protection against the worst of the Trump chaos and caprice.

Feel good moment in this summary; proposed changes that adversely affect Americans are protected by the Judiciary. Feel nauseous moment; this Administration puts forward rule changes that affect the less able to afford the revisions, and the Judiciary has been weakened in its support of those very citizens. Darn...

The Administrative Procedure Act is NOT an arcane law. It is both fundamental and foundational to our modern federal government. Prior administrations of both parties, committed to the principles of good government, have used it's rule making provisions to enact well thought out policies. The Act forces the government to follow a deliberative evidence based process. The Trump administration has so many problems with this Act because of it's ineptitude. Not because of any problems with the Act itself.

Common sense should prevail here so of course that is why it doesn't. Regulations should come in when a good deal of evidence can prove it will do more harm than good. Regulations should not come in when it is a bureaucratic attempt not to clean up the environment but to create more bureaucratic jobs. Republicans never met a reg. they liked and democrats never made a reg. that did not like.