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How the Administrative Procedure Act Stops Politics From Ruining Regs

By George Khoury, Esq. | Last updated on

It's hard to deny that President Trump is having a big impact on the government. However, an unforeseen one is the jamming up of the court system due to the executive branch's failure to follow the rules for changing the rules.

The Administrative Procedure Act, passed in the 1940s, requires that federal agencies provide opportunity for public comment and a notice period, as well as reasonable justifications, prior to making changes to, adding or deleting regulations. Recently, the APA has been used to successfully challenge deregulation in immigration, housing and environmental changes sought by the executive branch.

There are Rules

Although one of the hallmark promises of President Trump's campaign was deregulation, it appears that making good on that promise is more of a challenge than expected because of the rules. Although to an outsider it may seem that the government can simply change the rules, there are actually rules about, and procedures for, changing the rules. Not following the right procedures, as most lawyers know, lets courts rule against you without even reaching the merits.

When rules changes are implemented without following the required steps, the new regulations can easily be rolled back by the courts using the APA, at least until the proper steps are taken to pass the new rules.

Flouting the Rules

Although the many losses of the executive branch is indicative of a White House that is flouting the rules, the courts have noted that procedural defects only stop these regs from changing until the defect is cured.

However, using the APA to stop the improper deregulation is effective in slowing down the executive's potentially destructive national policies. Courts do not have to grapple with policy issues in order to rule in favor of the opponents of the deregulation, particularly when the APA's procedural safeguards have been violated.

The rules are there for a reason, and though you may be able to take a shot and then buzz the tower, upon review, if you don't follow the rules, you'll end up losing.

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