A government watchdog organization has accused the Trump administration of attempting to “evade public accountability” by way of the Administrative Procedures Act’s (APA) “good cause exception,” allowing federal agencies to finalize rules without adhering to public notice and comment requirements.
There are a limited number of situations in which agencies need to utilize the good cause exception, according to Coalition for Sensible Safeguards (CFSS) Consultant Sam Berger.
He characterized President Donald Trump’s interpretation of the APA exception as “inconsistent with decades of case law and agency practice,” with the potential to “effectively eliminate public notice and comment requirements entirely” on the CFSS website.
Under the APA, agencies are generally required to publish a notice of a proposed rulemaking, provide the public a timeframe to comment on the proposal and then respond to significant comments. These comments and responses are taken into account when courts review rulemakings.
The APA contains an exception to the notice and comment requirement for situations where an agency “for good cause finds” that notice and comment is “impracticable, unnecessary, or contrary to the public interest,” Berger noted, quoting from the APA’s statutory language. Comments are considered unnecessary when a regulation is a “routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.”
“When a rule is not insignificant and routine, courts have made clear that the exception is to be ‘narrowly construed and only reluctantly countenanced’ and ‘should be limited to emergency situations,’” he wrote. “These include circumstances where there is ‘imminent’ harm or where notice and comment would frustrate the purpose of the rule or cause harm to the public.”
However, the Trump administration has argued that agencies can ignore APA requirements when the president directs them to repeal a regulation and that notice and comment requirements do not apply to immigration and tariff-related rules. The CFSS cited court decisions contradicting these interpretations.
“In the second week of the administration, the U.S. Office of Management and Budget (OMB) issued a memorandum seeking to freeze spending in grant, loan, and other financial assistance programs governmentwide,” Berger wrote. “After the direction was halted by a court because it violated the law, OMB rescinded the memorandum. But the administration has continued its attempts to freeze hundreds of billions of dollars of funding for grant recipients and contractors, even while the independent Government Accountability Office (GAO) has already determined on multiple occasions that the administration’s funding freezes have violated the law.”
The Trump administration responded by directing the U.S. Department of Transportation to ignore GAO’s ruling and refuse to comply with its legal obligation to make spending information publicly available. The CFSS noted this requirement was enacted after the first Trump administration illegally impounded defense funding for Ukraine.
Berger concluded by warning of the potential for serious consequences of allowing the administration to undermine laws requiring public participation in the rulemaking process.
“Not only would they remove an important means of ensuring public accountability for regulatory actions, but they would degrade the information available to agencies in making rulemakings and further undermine trust in government,” he said.
He added that he expects more court challenges to come regarding the administration’s efforts to circumvent APA notice and comment requirements with its rulemaking efforts and hopes policymakers will work to strengthen public participation requirements rather than weaken them.