President Donald Trump on May 19 signed an executive order titled, Regulatory Relief To Support Economic Recovery. The order gives cabinet secretaries and agency heads emergency powers to suspend or even eliminate regulations that are impeding economic recovery from the COVID-19 crisis.
The order states:
It is the policy of the United States to combat the economic consequences of COVID-19 with the same vigor and resourcefulness with which the fight against COVID-19 itself has been waged. Agencies should address this economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery, consistent with applicable law.
The president signed the Executive Order during a cabinet meeting. According to Dave Boyer in a story in The Washington Times, “The president told his Cabinet members as he signed the order, ‘I want you to go to town and do it right. It gives you tremendous power to cut regulation.’” It remains to be seen how aggressively or effectively the various department secretaries and agency heads will use this emergency authority.
The Administrative Procedure Act allows for the normally lengthy rulemaking process to be curtailed when emergency conditions exist. Thus, for example, the usual public notice and comment period for a proposed deregulatory action could be ended and the proposed rule could be adopted as an interim final rule. Or an existing rule could be suspended or waived with “good cause” until the economic emergency is over. The whole process might take several weeks or a couple months rather than several years.
That sounds promising, but it’s not clear whether the federal courts will allow interim final rules to go into effect while the litigation that these rules will certainly provoke proceeds. Perhaps judges will be more sympathetic to suspending or waiving a rule temporarily than to rescinding it permanently.
The Executive Order contains several other potentially useful provisions. These include a regulatory bill of rights and directions to regulators to speed up pre-enforcement rulings and relax enforcement actions temporarily where appropriate.
An article in the Daily Caller quoted Russ Vought, acting director of the Office of Management and Budget: “Typically when our country has faced a crisis, Washington responds by grabbing more power. President Trump understands that to get the economy moving, the power needs to be given back to the people and entrepreneurs.”