President Trump’s “midnight” executive order on rulemaking is an important step in the right direction, but President Biden can strengthen it

January 29, 2021 | By ELIZABETH SLATTERY

In the waning days of his administration, President Trump issued one final executive order that will go a long way to make agency rulemakers accountable to the American people. As my colleagues Todd Gaziano and Angela Erickson explained this week in The Wall Street Journal:

“The Executive Order on Ensuring Democratic Accountability in Agency Rulemaking provides that only democratically accountable agency officials may issue regulations. This means that new regulations will have to conform to the new president’s priorities and not simply those of career employees. Reversing this order could be very costly and destabilizing to Mr. Biden’s agenda, including in ways that aren’t obvious.

“The order does more than the usual moratorium on agency rulemaking that new presidents impose until their own appointees can review pending rules. It would also insulate all Biden administration regulations from a potent constitutional challenge. That’s because rulemaking by agency employees flatly violates the Constitution’s Appointments Clause.”

This means career employees are not allowed to issue rules that have the force of law. Such career employees serve many vital roles in government, including scientific and other research, but lawfully binding regulations still don’t automatically materialize from such work. The policy decisions reflected in regulations that have the force of law must be made by accountable agency officers.

This not only makes sense, it’s what the Constitution requires—only government officials who are democratically accountable should be making rules that have the same weight as laws passed by Congress and signed by the president. At Pacific Legal Foundation, we’ve been fighting to make sure that rulemakers follow the rules in many areas—including guaranteeing that the American people know where the buck stops when an agency issues a rule.

Here’s more from Todd and Angela:

“Compliance with constitutional rule-making requirements has been inconsistent, undermining both democratic accountability and—because improperly issued rules are subject to legal challenge—agencies’ own agendas. This is no small problem. We broke the news on these pages nearly three years ago that hundreds of Food and Drug Administration rules were illegal because they had been issued by career staff. Subsequent Pacific Legal Foundation research on the Health and Human Services Department’s rule-making practices from 2001 to 2017 revealed that 1,860 FDA final rules (98% of the total) had been issued illegally and that other HHS agencies had similar problems.

“Since Pacific Legal Foundation sued the FDA in 2018 over an employee-issued rule involving vaping, the agency has tried several fixes. One was a belated ‘ratification’ of the rule by a Senate-confirmed officer. Even if such ratification was effective, which we dispute, it did nothing to address the agency’s broader problem.

“Last September, a few days before a federal appellate-court panel heard our challenge, HHS withdrew all authorizations for agency employees to issue regulations. Although this change doesn’t fix previously issued unconstitutional rules, it solves the department’s problem going forward—if it is kept in place.

“But what about every other department and agency? Since most don’t publicize their delegations of rule-making power, no one knows how common illegal employee rulemaking is across the government. But it clearly isn’t limited to HHS. For example, the career employees at the U.S. Forest Service issue forest plans, notice-and-comment rules that can restrict use of natural resources, increase wildfire risk and curb economic growth significantly for affected communities. A federal court ruling in 2017 suggests the Commerce Department is another offender.”

President Trump’s “midnight” executive order is an important step in the right direction, but President Biden can strengthen it by declaring that only presidentially appointed and Senate-confirmed officials—such as department heads and some assistant secretaries—sign rules going forward. It’s in the Biden administration’s interest to keep this executive order on the books. It will help President Biden and the people he taps for senior policymaking positions direct the work of the executive branch departments and agencies. And most importantly, it will enable the American people to know whom to hold responsible for agencies’ actions.