'Good Cause' Is Cause for Concern

Abstract

Presidential transitions routinely engage in elaborate games of “administrative ping-pong.” The outgoing administration rushes to promulgate rules that align with its party before leaving office — known as midnight rules. Successors quickly attempt to unwind those rules and policies, only to adopt their predecessor’s strategy and rush to promulgate rules before the end of their term. Both pass on an administrative state stuffed with last-minute rules and no good way to undo them, metaphorically hitting the ball back over the net. This game, while comical in theory, is controversial in practice. And it is even more controversial when “major” rules are involved. President Obama’s administration promulgated over 3,600 rules in 2016 — a nearly 13% increase over 2015. 118 of these rules were “major” rules with an economic impact of at least $100,000,000. Many rules, major or nonmajor, were promulgated without using the Administrative Procedure Act’s (APA) notice and comment (N&C) requirements. And many were “midnight rules” promulgated in Obama’s final months. One popular justification for exempting rules from N&C during Obama’s presidency was the “good cause” exception. President Trump is now tasked with recalibrating the administrative state to fit his policy goals. Upon taking office, Trump’s chief of staff issued a memorandum to all executive agencies requesting that they delay or revoke various regulations. The D.C. Circuit shined a light on Trump’s delay efforts when it struck down an EPA stay of an Obama-era regulation. Trump is now simultaneously instructing his agencies to adhere to the APA’s procedures and delaying rules by means familiar to his predecessor: the good cause exception. Along with the D.C. Circuit’s decision, this application of good cause has triggered a needed review of the exception and its use to excuse major and nonmajor rules from N&C. This Essay argues that the risk of foregoing prepromulgation N&C is simply too great when dealing with major rules. Major rules are singled out for increased oversight and as such deserve the full extent of available procedures.