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Same Rules Apply

Friday, October 20, 2017

Not even a full year into his term, President Donald Trump has already made clear in countless ways that he doesn’t think the normal rules apply to him. The administration applied that principle again earlier this month when it issued rules loosening the Affordable Care Act’s contraception mandate without going through a key necessary step. This part of the process—called notice-and-comment rule-making—tripped up the Obama administration on numerous occasions in federal court, and Trump may soon find his controversial effort to allow employers to refuse birth control coverage for religious or moral reasons in similarly hot water.

Although the president and other executive branch officials have a lot of authority to determine how to enforce and interpret the law, there are important limitations to that authority. Their actions must be consistent with the Constitution and the laws passed by Congress. One such law, called the Administrative Procedure Act, generally requires that rules go through the aforementioned notice-and-comment rule-making process. A federal agency that wants to issue a new rule or make substantive changes to an existing one usually has to let the public know what it’s thinking about doing, give the public time to provide feedback, and then respond to that feedback when it announces its final rule. When the Trump administration decided to sidestep that process, taking the position that the normal rule doesn’t apply here, lawsuits were quickly filed challenging the new rule and raising this procedural hurdle (in addition to other substantive objections).

In suing Trump for failing to comply with the APA’s notice-and-comment requirement, left-leaning organizations and states were simply following the playbook used by their conservative counterparts during the Obama years. When it was Obama bypassing the notice-and-comment requirement, courts repeatedly concluded that he couldn’t do that—even when he had the sort of sound legal rationale that Trump is not offering here.

Perhaps the most famous example of this was when Texas and other states sued the Obama administration for, among other things, failing to go through notice-and-comment rule-making in its decision to implement Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), a program directing federal officials to exercise their discretion on a case-by-case basis to defer removal of certain parents of U.S. citizens and legal permanent residents. Indeed, it was that failure that led a federal district court in Texas to issue a nationwide injunction halting the program before it even began. (On appeal, the U.S. Court of Appeals for the 5th Circuit, in a divided decision, concluded that the program was unlawful on additional grounds, and that ruling was affirmed by a deadlocked Supreme Court.)

That wasn’t the only time an Obama-era rule was stalled, at least in part, because the administration hadn’t gone through notice-and-comment rule-making. Last year, 13 states and agencies and two local school districts sued federal agencies in part over a letter issued by the Department of Education which provided guidance saying that transgender students should be able to use the restroom consistent with their gender identity. Rightly or wrongly, a different federal district court in Texas found that the plaintiffs “would likely succeed on the merits that Defendants violated the notice and comment requirements of the APA.”

And yet another Obama-era rule—this one designed to prevent companies from skipping out on tax liability by using a smaller foreign intermediary company as an offshore base—was enjoined earlier this month solely because the IRS and Treasury Department failed to comply with notice-and-comment requirements.

In each of these cases, the Obama administration argued, at least in part, that the notice-and-comment rule didn’t apply. The APA expressly exempts from the notice-and-comment requirement “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” In other words, when the rule is merely “advis[ing] the public of the agency’s construction of the statutes and rules which it administers” rather than changing the law or imposing binding norms, the agency doesn’t need to engage in notice-and-comment rule-making. In fact, my organization, the Constitutional Accountability Center, filed an amicus brief in the DAPA case, agreeing with the Obama administration that notice-and-comment was not required there.

To the extent the Obama administration argued that the rules in these cases didn’t require notice-and-comment rule-making at all, it wasn’t making the same aggressive claim of executive power that the Trump administration is making now. The APA itself is explicit that some rules don’t need to go through notice-and-comment, and with good reason: For all its potential benefits, the process makes it more difficult and more time-consuming to issue a rule. It makes no sense to require agencies to engage in that process every single time they want to provide the public with general guidance about how they are enforcing their rules.

But when it comes to changing the ACA’s contraception mandate, the Trump administration’s primary argument isn’t that the notice-and-comment rule doesn’t apply. It’s that the Trump White House had “good cause” not to comply with that requirement. While the APA does contain a “good cause” exception, the D.C. Circuit has explained in other cases that that exception is “limited to emergency situations.” But as University of Michigan Law professor Nicholas Bagley has written, there’s no emergency here. As he put it, the administration’s explanation for “good cause” amounts to “saying that the [contraception] rule is so important that it has to be rushed out the door without hearing what the public has to say about it.” But that rationale, if accepted, would create an exception that would swallow the rule. As Bagley further explains, the administration also argues, like the Obama administration did in certain cases, that provisions of law that simply give the agency general authority to issue rules allow it to do what it wants here. But, as Bagley also explains, those provisions still require the agency to “act consistently with the APA.”

President Trump may not like the fact that there are rules that slow down his administration’s ability to rewrite the regulations governing the contraception mandate, but those are the rules. They apply to him no less than they applied to President Obama.