Corrected: A previous description of this Commentary mischaracterized the profession of one author. They are an economist and a professor of law, respectively.
In an executive order in February, President Donald Trump called on federal agencies to review their regulations and identify which to cut. Betsy DeVos advanced this work at the U.S. Department of Education last month when she issued a notice in the Federal Register asking the public to identify “unduly costly or unnecessarily burdensome” regulations and guidance documents by submitting comments to the Education Department by Aug. 21.
The Office of Management and Budget reported last week that agencies are progressing with this agenda across the federal government, withdrawing and reconsidering hundreds of regulatory actions since the new administration took office. This is a critical moment to get a diverse set of views before the Education Department. It’s time for those of you who have been protesting to put down your signs long enough to get your opinions counted on the record.
Recent actions by the Trump administration’s Department of Education have prompted strong opinions. In February, the department rolled back the Obama administration’s civil rights protections for transgender students; angry, scared, and tearful parents of transgender children demanded a meeting with DeVos to share their concerns. In June, the department announced that it was freezing the implementation of the Obama-era borrower-defense-to-repayment rule, which would shield borrowers from having to repay debt accrued at institutions of higher education that lured them with substantially false information; a lawsuit over the delay quickly ensued. Meanwhile, the department has been under fire for its feedback on state ESSA plans after Congress gutted the Obama-era ESSA accountability rules. And the department’s indications that it intends to change course on the Obama administration’s framework for addressing sexual assault on campuses sparked protests outside DeVos’ office earlier this month. All those hot-button issues have prompted vigorous debate—and they all relate to federal regulations or guidance.
It’s now up to the public to be sure the Education Department’s legal record captures the full complexity of those issues. Protest is an important form of civic engagement, but the regulatory process provides a path for public participation that is formally recognized by the legal system, with greater potential to influence nuanced decisions. Engaging with that process is an important part of what democracy looks like.
Regulations—also known as rules—carry the force of law but are made by agencies and not voted on by Congress. The rationale for this system is that there are too many decisions, at too technical a level of detail, to be included in many pieces of legislation, so Congress delegates the responsibility to fill in some of the specifics to federal agencies, including the Department of Education.
Some checks on executive overreach are built into the system. For example, one check comes in Congress’ instructions to federal agencies limiting what and how they can regulate: Regulations must respond to concrete directions that Congress writes into federal law. Congress can always pass a new law rejecting an agency’s regulation, or—as it did 14 times in the first few months of the Trump administration—use the Congressional Review Act to overturn regulations published within the past 60 days that Congress is in session.
The regulatory process provides a path for public participation that is formally recognized by the legal system."
A second check is the requirement for cost-benefit analysis to make sure that rules are for the common good. President Ronald Reagan formalized the use of cost-benefit analysis in rulemaking. And all presidents since, both Republicans and Democrats, have required agencies to show that their significant regulations have social benefits that exceed their costs and that they do so by a greater margin than alternative approaches. Trump makes a significant and much criticized break from this bipartisan tradition with his executive order on cost-benefit analysis, which references costs only, without regard to benefits.
A third check comes from the “notice and comment” process under the 1946 Administrative Procedure Act, which one of its original Senate sponsors called “a bill of rights” for citizens regulated by federal agencies. Under this process, agencies must post their proposed rules in the Federal Register and invite public comments on them. Before a proposed rule can be finalized, or an existing rule rescinded, the agency must respond to substantive concerns raised in the public comments. If a regulated party sues over the legality of a finalized rule, courts use the public comments to help ensure that agencies’ decisions are not “arbitrary” or “capricious.”
DeVos’ notice in June asking the public to identify “unduly costly or unnecessarily burdensome” regulations put a thumb on the scale against regulation by highlighting the costs and burdens with no attention paid to benefits. But you can’t determine which rules are “unduly costly or unnecessarily burdensome” by considering costs or burdens in isolation. You have to compare them to the corresponding benefits. And even though the call for comments emphasizes costs, any informed debate needs to incorporate benefits as well as costs.
The education secretary has also called for comments on “guidance,” which clarifies the law rather than creating a new legal obligation. Less formal than a regulation, guidance is not subject to the same legal requirements for cost-benefit analysis or notice and comment. Civil rights policies issued by the Education Department, such as those about transgender students and sexual assault on campus, are often explained through guidance documents rather than regulations. Given demonstrated public concern about those policies, comments on guidance documents are particularly important.
The more specific you can make your comments, the better. You can find the Education Department’s existing regulations at Title 34 of the electronic version of the Code of Federal Regulations, and the significant guidance documents are also available online. Explain what you like, referring to specific language. Offer language on desired changes, citing provisions by number. Alternative policy solutions are welcome. You can submit comments on both regulations and guidance online (at docket number ED-2017-OS-0074-0001) by the strict deadline of Aug. 21.
The opportunity for notice and comment is a fundamental part of the democratic process. It is for everyone, not just for lobbyists. For anyone frustrated by how often the Capitol switchboard is jammed these days, here is a chance to have your voice heard.