Nothing to See Here

In March, Secretary of State Marco Rubio published a short bulletin in the Federal Register that has the potential to upend how much the public can shape federal policies. The bulletin announced that all federal regulations dealing with immigration and customs are now considered “foreign policy activities.” As a result, they no longer have to go through one of the most fundamental processes in modern American government: the notice and comment process. In that process, the government announces to the public it is planning to issue a new rule and asks for input that it must then take into consideration. Wonky? Sure. But that process is one of the few meaningful ways the public can influence the regulations that transform Congress’s laws into government actions that affect people directly. 

If Rubio’s gambit to exempt immigration and customs rules from the notice and comment process succeeds, it will cut the public out of shaping regulations that have significant, widespread impacts on everyday Americans. And in the weeks since the bulletin was announced, it’s become clear that this was only one part of an increasingly broad effort to thwart the public’s participation in how the government conducts its business, impacting everyday Americans as well.

The notice and comment process is part of the Administrative Procedure Act (APA), a nearly 80-year-old law that seeks to ensure certain executive and independent regulatory agencies act based on evidence rather than whim. The notice and comment process not only applies to new rulemaking but also to making significant changes to or revoking an existing regulation. The APA also establishes procedures for people affected by an agency’s decision to challenge that decision, and it lays out how federal courts can review the legality of regulations, including whether agencies followed proper processes or acted arbitrarily.

But while the APA covers most federal agency actions, it exempts certain things such as military and foreign policy activities. 

Some State Department activities, like those related to diplomacy, fall under this exemption and do not typically go through notice and comment. Rubio’s announcement is an attempt to extend that exemption by giving his department and the administration writ large the broad authority to arbitrarily decide which rules are covering foreign policy activities. 

Because of the amount of discretion Rubio claimed in his announcement to determine whether rules will be exempt, it is difficult to measure what impact the change has had on the transparency of new government actions. But there’s good reason to be concerned. The types of regulations that could become exempt have the potential to affect millions of people. As POGO has written before, the government’s immigration enforcement powers are vast and extend far beyond the physical borders. An example of a past regulation that went through notice and comment — but that might be exempt under Rubio’s plan — illustrates how consequential they may be.

For example, people who have traveled internationally have likely encountered face recognition technology when passing through customs. As POGO wrote in a 2020 public comment when Customs and Border Protection (CBP) moved to expand its face recognition program, there are significant problems with it. It requires noncitizens to go through the face recognition process and U.S. citizens to affirmatively opt out of doing so before entering the country, yet the technology is notoriously unreliable: It has a documented tendency to more frequently misidentify people who aren’t white men. Expanding the number of people who interact with face recognition increased the risk of unconstitutional, disparate impact on women and people of color.  

It’s also worth noting that Rubio’s announcement, which applies to customs rules, comes as President Trump aggressively expands tariffs. And while the Administrative Procedure Act doesn’t apply to every existing trade law, expanding those exemptions could make it easier for the administration to implement significant trade policies without public notice and comment. Considering how producers and consumers are affected by such economic policies, the regulations to enforce those tariffs that CBP propagates would be of considerable interest to them.    

During his first term, agencies tried multiple times to bypass the notice and comment process. For example, in 2019 President Trump issued an interim final rule that significantly impacted the U.S.’s asylum procedures without public notice and comment. The rule barred individuals from being granted asylum unless they had already been rejected for similar protection from another country on their way to the U.S. (also known as a transit ban). A federal court blocked the rule because the administration failed to justify its claim that the rule did not have to go through notice and comment.

The first Trump administration lost in court 26 times for failing to follow the notice and comment process. It was more likely to lose a notice and comment challenge than any other type of claim under the APA when its regulations were contested in court.

The first Trump administration’s bad track record with notice and comment could explain why, this time around, it is seeking to consolidate power and get rid of the established regulatory practices it has tried and largely failed to skirt before. In addition to Rubio’s announcement, the Department of Health and Human Services recently formally rescinded the “Richardson Waiver,” a 1971 policy through which it committed to voluntarily implement the public notice and comment process for certain regulations that aren’t covered by the APA and to refrain from abusing exceptions. Because of that decision, HHS may be able to make changes to research funding allocations, hospital reimbursement rates, and Medicaid regulations with little oversight, and without the public knowing. This is a blatant effort to decrease transparency and block the public from having a way to criticize and weigh in on harmful policies. 

Taking things even further, Trump instructed agencies through a recent memo to move quickly to eliminate broad swaths of regulations he deemed illegal. The memo asserts that by claiming a regulation is illegal, agencies can repeal it without going through notice and comment. This creates a real risk that regulations will be further politicized and the public will be shut out of any discourse about it.

Finally, in an otherwise bizarre executive order eliminating a regulation about water pressure in showerheads (of all things), Trump made a stunning assertion of presidential power: “Notice and comment is unnecessary because I am ordering the repeal.” Put another way: The law does not apply because the president says it doesn’t. This is simply not true because the president does not have unilateral power to decide whether rules go through notice and comment. 

Despite President Trump’s frequent denunciations of other administrations for creating an unresponsive bureaucracy, his own administration is engaging in a dangerous and egregious use of executive power that does exactly that. By unilaterally deciding to exempt a vast swath of regulations from the notice and comment requirement, the administration is silencing millions of Americans who would use public comments to make their voices heard. Protecting the notice and comment process ensures that existing laws are not imposed by a single person’s will, and that people have a say in the regulations that govern them. The public should not accept being excluded from the creation or repeal of the rules that affect us all.