President Trump Thinks He Can Skip Notice and Comment
Good luck with that.
The Trump administration wants to ditch a bunch of regulations without running through notice and comment. That’s understandable. Notice and comment takes a ridiculously long time, consumes a ton of agency resources, and involves lots of pointless paperwork. Why bother if you’re just going to repeal the rule anyhow?
Agencies have several arguments for skipping notice and comment, including “the President made me do it” and “the rule is legally defective.” The former is wrong; the latter will be available only rarely. But the argument I want to explore today is that it’s OK to skip notice and comment when the agency in question has already heard and considered all the arguments it might encounter. This is from HUD:
Over the past several years, HUD has received extensive public feedback about [the Affirmatively Furthering Fair Housing (AFFH) obligation]. HUD has received tens of thousands of comments covering a wide range of stakeholders, including public housing agencies, other housing providers, organizations representative of housing providers, governmental jurisdictions and agencies, civil rights organizations, tenant and other housing advocacy organizations, and concerned citizens. There has also been a thorough public debate on these issues in print and online. In light of this public engagement, further notice and comment concerning AFFH is unnecessary and would simply be a formality without adding substance to the debate.
(h/t to my colleague Dan Deacon for calling this to my attention!)
Among academics, I’m unusually sympathetic to the argument that we’ve lost track of the purposes that notice and comment is meant to serve and that not all notice-and-comment failures ought to be fatal. As I explained in Remedial Restraint in Administrative Law:
The notice-and-comment process is one way to encourage public feedback, but it is by no means the only one, or even the most effective one. [A]gencies routinely maintain close working relationships with the regulated community as they pull through difficult sets of issues. Those relationships should make a difference in deciding whether a party challenging an agency action has suffered actual prejudice. If the party has had a full and fair opportunity to voice its objections, if the agency has heard and considered the substantive concerns that the party would have raised, or if there’s no substantial reason to think that the party’s comments would have led the agency to change its mind, it becomes difficult to see how the party has been harmed by the agency’s failure to adhere to §553.
The thing about being an academic, though, is that I get to make arguments about what the law ought to be. I get to make those arguments even if that is not what the law actually is.
In the real world, as I was at pains to explain in my article, the courts treat failures to conduct notice and comment as structural errors that require automatic reversal. Failures are held harmless “only where the agency’s mistake clearly had no bearing on the procedure used or the substance of decision reached.” Read literally, the standard eliminates any basis for an excuse—skipping notice and comment always bears “on the procedure used.”
To the (limited) extent that the courts are willing to forgive notice-and-comment failures, they do so when the agency has issued an interim final rule and then afforded the public a chance to comment. That’s what HUD did here, for example. At the D.C. Circuit, though not elsewhere, post-publication notice and comment can save a rule if an agency makes a “compelling showing” that it kept an open mind upon receipt of the comments. They agency must demonstrate, in other words, that it took the subsequent public feedback seriously and remained willing and able to change the interim final rule in response.
How is HUD supposed to do that when it has already said that notice and comment “would simply be a formality without adding substance to the debate”? Isn’t that tantamount to an admission that its mind is already made up?
If the Trump administration wants its changes to stick, it’s a bad idea to flout the court-elaborated procedural rules that constrain and channel agency rulemaking. I say that as someone who thinks that the current rules around notice and comment are much too strict. Working through the process, even if it’s a pain in the ass, is likely to be quicker and easier than picking a fight with the courts that you’re not going to win.