Emergency rulemaking in response to COVID-19

• Published in: Policy File 2020
• Main Author: Raso, Connor
• Format: Report
• Language: English
• Subjects: COVID-19; The Brookings Institution

The Trump administration has argued that deregulation is an important part of its effort to revive the U.S. economy from the COVID-19 crisis. To that end, in May 2020 the President signed an Executive Order directing agencies to rescind, modify, and waive regulations that may inhibit economic recovery. Implementing such changes generally requires administrative agencies to go through a lengthy and resource-intensive process of drafting and publishing a proposed regulation (or "rule"), allowing the public time to comment on that rule, reading and responding to these public comments, and then producing a final rule. While cumbersome, this process is a critical mechanism by which unelected agency officials are made more accountable to the public. It is also an important way for agencies to obtain feedback and relevant data on their rules before they become binding law. One way that agencies can avoid this lengthy process is by declaring that a rule addresses an emergency that makes public notice-and-comment " impracticable." Using newly collected data, this paper examines how the Trump administration has issued rules under this emergency exception in the wake of the COVID-19 outbreak. It asks: have the emergency rules issued by the Trump administration citing the COVID-19 crisis truly addressed exigencies raised by the crisis, or have they instead been used to further unrelated policy goals? It is important to note that emergency rulemaking (the focus of this piece) is one of several possible mechanisms for agencies to shift policy opportunistically during the COVID-19 crisis. Contracts, emergency orders, and enforcement policy changes are also all potentially important methods of responding to the COVID crisis, but they are not captured by the data used in this piece. The administration has also advanced its policy goals through other channels, such as issuing presidential proclamations directing agencies to change their policy decisions. And other high-profile policy decisions have been made through the more cumbersome notice-and-comment rulemaking process. These types of policymaking tools surely comprise a large portion of the approximately 600 "temporary deregulatory or administrative actions" that OMB counted during the pandemic.