A new kind of deregulation in the Trump era.
The Trump administration has sought to tackle an issue of government overreach that, while seemingly trivial, is bound to have significant consequences for administrative law.
On April 9th, President Trump signed “Maintaining Acceptable Water Pressure in Showerheads,” an executive order (EO) that directed the Secretary of Energy to repeal a 13,000-word regulation limiting, by definition, the amount of water that could flow through household nozzles. This water conservation effort began in the Obama administration in 2013; the rule was rescinded during Trump’s first term and subsequently reinstated by President Biden. According to Trump, the regulation unnecessarily burdened private action: “I like to take a nice shower, take care of my beautiful hair… I have to stand in the shower for 15 minutes until it gets wet. Comes out drip, drip, drip. It’s ridiculous.”
It is well known that excessive regulation encroaches on personal liberty and individual decision-making. To that end, the Showerhead EO is ostensibly aimed at reducing this government intrusion and serves a deregulatory purpose. But the means of deregulation, while more subtle, are just as legally significant as the policy change itself.
A crucial sentence was tucked away in the middle of the EO: “Notice and comment is unnecessary because I am ordering the repeal.” Procedurally, rules are rescinded and replaced by new rules, which undergo a statutorily mandated process called notice and comment. Under the Administrative Procedure Act, an agency must give public notice of a proposed rule and allow interested parties to comment before the final rule is issued. President Trump’s EO discounted these requirements, proclaiming instead that the agency could bypass the process because he declared it so.
For administrative law experts, this sentence has caused some pause. According to law professor Jonathan Alder, it is a “striking” and “breathtaking assertion of presidential authority” that will “almost certainly be rejected by the courts.” He noted that a “presidential decree, by itself,” cannot trigger what is known as the “good cause” exemption—an allowance to skip notice and comment when the process is impracticable, unnecessary, or contrary to the public interest. This exemption often applies to situations where notice and comment must be waived, such as public emergencies.
Yet, within days, the Department of Energy published a final rule in the Federal Register that restored the more minimalist 1992 definition. It also reasoned that the EO “directed the agency to proceed without notice and comment. In compliance with that directive, and because there is good cause to skip notice and comment in light of the non discretionary nature of the agency’s duty, the agency is issuing this repeal without [it].” Contrary to Alder’s statements, the agency argued that a presidential decree was “good cause.” In addition to forgoing notice and comment, the showerhead rule, unlike most regulations, did not contain a detailed preamble to explain why the former policy was being rescinded. With the Trump administration’s blessing, this short rule passed over many of the fundamental procedures that typically govern agency action.
The Showerhead EO and rule reveal a core tension between the reduction of administrative excess and unwieldy presidential power. As Chief Justice John Roberts explained in his dissent in City of Arlington v. Federal Communications Commission, “the danger posed by the growing power of the administrative state cannot be dismissed.” But it seems that these efforts to rein in the administrative state are happening in conjunction with a broad assertion of presidential power—one that ought not to avoid scrutiny simply because it is happening in tandem with more laudable deregulation efforts.
This method of deregulation may also prove counterintuitive. According to President Trump and the Department of Energy, a presidential order to promulgate a rule is, by itself, enough to justify the agency skipping notice and comment and absolves the agency of the need to give reasons for its actions. If this theory is accepted, rulemaking will undergo a seismic shift. This would mean that a simple sign-off from the president is sufficient to bypass many procedural steps—steps that are beneficial in reducing the number of regulations each year because of the agency’s resource and time constraints. This may have the opposite effect on the administrative state and actually enlarge it, enabling rules to be rescinded and replaced much faster should a more interventionist president take office.
Ultimately, if the Trump administration continues to pursue this path of deregulation, there may be significant changes to how agencies promulgate rules, and it is unclear whether these changes will be for the better or worse.
