Janice Luong: The Administrative Procedures Act, the APA, is what many would consider to be a key administrative law that governs federal rulemaking and allows individuals to challenge agency actions in court. It is, I think many would agree with me when I say this, a pretty complex law to study. And to summarize how it guides the rulemaking process is that the statute requires most federal agencies to publish rules they're proposing, amending, or repealing in the federal register for public inspection. And by public, I mean anyone. So students, industry workers, civil society, educators, you name it. Then the agency is required to provide an opportunity for the public to provide feedback. And this is also known ast Section 553 of the statute. And speaking on the complexities of the statute, what's not covered, there are exceptions to this process, which are matters related to military and foreign affairs, matters related to agency management or personnel or public property, grants, benefits, and then there's also the "good cause" exception which agencies have to justify to bypass the notice-and-comment.

Terry Gerton: So the folks that work for President Trump actually going back to his first administration and continuing into a second, don't seem to hold the APA in very high regard. You found some interesting statistics about that. Could you share them?

Janice Luong: During his first administration, it is clear that they have been attempting to short circuit the administrative procedures that are already in place. According to a study that I've cited in my analysis, the Trump administration has lost in court agency-related challenges 26 times. This number only refers to notice-and-comment challenges, and he has had other losses regarding violating the Act. And also his administration is known to have the lowest win rate when agencies are putting forth these claims.

Terry Gerton: So they continue to challenge the APA. In fact, the latest challenge really comes from the State Department: Secretary of State Rubio published a bulletin that caught your attention. What was it about it that you found eye-popping?

Janice Luong: Let me let me set the ground a little bit. So Secretary of State Marco Rubio, in his federal register, targeted the notice-and-comment part of the rulemaking process. Specifically, he asserted that under President Trump's Executive Order 14150, and under his capacity as Secretary of State, he has the authority to decide whether any agency's action falls under the foreign affairs exception. Now, foreign affairs is broad, but in his declaration, what constitutes as a foreign affairs matter is, and I quote, "controlling the status, entry and exit of people and the transfer of goods, services, data, technology and other items across the borders of the US." In other words: The Secretary of State has the ability and authority to indulge in another agency's action on immigration and commerce matters. Now, this is completely unprecedented, a Secretary of State has not had this kind of authority, even though it is true that they are responsible for foreign affairs matters. But typically, they don't indulge and decide on another agency decision making. Typically, agencies handle their own matters. On whether they can bypass notice-and-comment.

Terry Gerton: The agencies here being Commerce and Homeland Security. I interpret what you just said to say that the Secretary of State is exerting his authority over immigration and tariffs and customs. There are people on both sides of the aisle who likely have an opinion. People may support the Trump administration's immigration actions and tariff actions. And some people may oppose them. What happens when rules affecting these two big policy topics are excluded from public comment?

Janice Luong: I think skipping the notice-and-comment process is a concern for any administration. It's not just Republican. It's also if a Democratic administration attempts this. The direct answer is that it is important to protect the public's ability to participate in the rulemaking process because regulations impact our everyday lives. Without us realizing it or seeing it, it affects how the U.S. conducts trade, it affects how we enforce immigration across the border, and as Trump himself has noted, it can even affect the water pressure in our shower heads. So it touches different aspects of our lives, even without us realizing it. And this is a dance that we have seen him do before. And this time around, we can only see him testing his presidential powers at a much a faster rate.

Terry Gerton: One of the reasons behind a notice-and-comment period is that regulations are complicated, right? The government, while it has many, many experts, doesn't have all the experts, and so in order to be able to do regulation right, you want... Experts in the field or in industry to be able to provide insight. On things you might have missed, things you have gotten wrong, technicalities... Who's voice is missing in this process?

Janice Luong: Well, I would argue that. Any voice that is not in the government currently. And that is really the beauty of Section 553, because you do get the chance to solicit information from people of all backgrounds. And I just checked this morning that there are 500-plus comments submitted to agencies handling immigration matters already, so there are definitely a lot of folks out there that are interested and certainly they have a lot of things to say.

Terry Gerton: Are there other examples where agencies are making changes to rules and regulations without public comment?

Janice Luong: So it's not just the Department of State that is attempting to bypass the notice-and-comment process. It's recently also the Department of Health and Human Services. Notably, the agency has formally rescinded the Richardson waiver, which has been a long-standing policy where the agency has committed to voluntarily implementing the public notice-and-comments process for certain regulations, even though they aren't required to. So, now the agency is completely releasing its handcuffs, as I would like to say, and it will not stop them from abusing the exceptions that are in place by the APA.

Terry Gerton: So it sort of gave itself a get out of jail free card in terms of having to listen to anyone's comments about their rules.

Janice Luong: I would say so. You know, this could have broad impacts, and something that I think that could affect it is research funding and hospital reimbursement rates or Medicaid regulations.

Terry Gerton: So it can make all of those changes itself. Without now having to consult the industry or its grant recipients, its clients. And people wouldn't know that the rules had changed.

Janice Luong: Correct, and I think it is really important to give the public the chance to speak out on policies that impact them. So blocking this is completely just incredible.

Terry Gerton: Well, you at POGO are especially interested in making recommendations about effective and accountable government oversight. So what do you recommend here? What are the right things to do?

Janice Luong: So fixing this exception loophole, that is a question that legal and policy experts have been debating over time. And I can joke around and say that we can make amendments to the Administrative Procedures Act, but it is easier said than done. It is highly unlikely, actually, since Congress has only amended it 16 times since its enactment. I will lean on the legislative history leading up to its enactment, where Congress and the judiciary branch have agreed that these exceptions should be construed narrowly. So the law makes it clear that no one individual or agency can just do away and skip the comment. Period. Who ultimately is the arbiter of whether an agency needs to go through the process, or the courts.