Can a President Amend Regulations by Executive Order? (CRS Report for Congress)
| Release Date |
July 18, 2018 |
| Report Number |
LSB10172 |
| Report Type |
Legal Sidebar |
| Authors |
Valerie C. Brannon |
| Source Agency |
Congressional Research Service |
Summary:
An executive order signed by President Trump on July 10, 2018, raises the question of whether a
President—with the stroke of a pen—can amend federal rules codified in the Code of Federal Regulations
(CFR). In Executive Order 13843, the President changed the hiring process for administrative law judges
(ALJs), “excepting” them from the competitive service. Somewhat unusually, the order directly amends
three provisions in the CFR, rather than directing an agency to amend the regulations. Generally, rules
may only be amended through special procedures governed by the Administrative Procedure Act (APA).
This process, known as notice-and-comment rulemaking, usually requires advance notice and a period for
public comment on proposed rule amendments. As a result, Executive Order 13843 raises the question of
whether the President, if otherwise vested with the authority to make rules, could bypass this normal
process and directly amend the rule by executive order. Supreme Court precedent suggests that
presidential actions, such as executive orders, are not reviewable under the APA. But the APA’s
procedural requirements still apply to agencies when they act to implement any presidential directives,
raising the question of when presidential action ends and when agency implementation begins. This
Sidebar explores the scope of the presidential exception to the normal rulemaking process.
When an agency engages in “rule making,” defined as formulating, amending, or repealing a “rule,” the
APA generally requires the agency to follow certain procedures. Unless a rule falls within one of the
statutory exceptions, the agency is required to undertake notice-and-comment rulemaking. (For an
overview of notice-and-comment rulemaking procedures, seethese two CRS Reports.) An agency has to
comply with the APA not only when it initially promulgates a rule, but also when its actions constitute a
substantive amendment to a rule falling within the APA rulemaking requirements.
