The Trump administration takes a wrecking ball to rulemaking

Last month, news outlets and social media feeds were dominated by images of the destroyed East Wing of the White House. While a sizable part of the People’s House was reduced to rubble, the Trump administration also took a wrecking ball to another fundamental part of our democracy: the people’s ownership of governance. 

In a dry, technical memo, an obscure agency, deep in the seat of federal power, declared the end of public input into the most disputed, controversial and consequential federal rules. 

Our right to breathe clean air, to be treated fairly and transparently when we buy a home or take out a car loan, and to be free from discrimination at school or in the workplace is now based entirely on the caprice of a deep-state bureaucrat.

The Office of Management and Budget (OMB) — which acts as the president’s drum major across the federal government, setting standards and enforcing discipline — issued this blueprint for the destruction of protections, rights and freedoms. 

OMB told agencies that so long as they could make a case that the rule was illegal, whether or not a court had weighed in, they could roll back any rule. It told agencies to cut the public out, to not consult with state or local governments and to downplay the costs of a rule’s rollback. 

For an administration that claims to be the people’s champion against an out-of-control deep state bureaucracy, this was deeply cynical.

Federal rules touch nearly everything: whether your child’s school is accessible, whether your doctor’s office has the right equipment, whether your information stays private online. 

For decades, agencies have, as required by law, given the public, individuals and businesses, states, tribes and local governments, a chance to comment on and meet with the agency to discuss proposed rules. Only after the agency has reviewed all that information and considered the impact of the proposed rule can it go into effect. 

Now, by administrative fiat, OMB has told agencies to dispense with gathering information altogether. The new directive largely permits agencies to demolish any rule without a public process. 

We have spent much of our careers making sure that federal rules take into account the perspectives and experiences of ordinary people. 

When a team working under one of us developed major rules at the Department of Justice — like the ones making websites accessible or ensuring that diagnostic equipment works for all bodies — they didn’t do it alone. They considered comments from people who knew what it was like to be locked out of a website or to not be weighed when they went to the doctor. 

When the other helped shape rules governing the mortgage market at the Consumer Financial Protection Bureau, people who had lost their home to foreclosure as well as bankers, investors and lawyers were heard during the process. 

Good rulemaking is done out in the open. It requires a conversation between the governed and the governing, subject to scrutiny and oversight. 

An open rulemaking process isn’t symbolic. It forces agencies to consider opposing views. It limits agency overreach. And it invites scrutiny from courts, watchdogs and the public. Without public engagement, we risk regulating without rigor, repealing without reason and governing without accountability.

Rebecca B. Bond is former chief of the Disability Rights Section, Civil Rights Division, in the U.S. Department of Justice. Diane Thompson is deputy director and chief advocacy officer at the National Consumer Law Center, founder of the Consumer Rights Regulatory Engagement Project, and former senior advisor to the director of the Consumer Financial Protection Bureau.