Can a President Amend Regulations by Executive Order?

Legal Sidebari

Can a President Amend Regulations by
Executive Order?
July 18, 2018
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, see these 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.
These rulemaking procedures apply only to an “agency process.” The APA defines “agency” to include
“each authority of the Government of the United States,” but excludes Congress and the courts. In effect,
the APA applies only to the executive branch. The text of the statute does not explicitly mention the
President, who is the head of the executive branch and seemingly an “authority of the Government of the
United States.” However, in 1992, the Supreme Court held in Franklin v. Massachusetts that the
President’s “actions are not subject to [the APA’s] requirements.” In that case, the State of Massachusetts
challenged the decision of the President and the Secretary of Commerce to use a certain method for
counting federal employees serving overseas in the 1990 Census, arguing, in part, that this decision was
arbitrary and capricious and therefore unlawful under the APA. The Court concluded that the relevant
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final action incorporating this method was that of the President, rather than the Secretary, and went on to
consider whether the President was an “agency” subject to the APA. The Court acknowledged that the
APA definition of “agency” does not expressly exclude the President, but noted that the President is not
“explicitly included, either.” Citing “respect for the separation of powers and the unique constitutional
position of the President,” the Court held that “textual silence” was “not enough to subject the President
to the provisions of the APA.” But the Court was careful to clarify that it was only holding that the
President’s actions may not be reviewed “for abuse of discretion under the APA,” and those actions “may
still be reviewed for constitutionality.”
The Supreme Court confirmed this ruling two years later, in Dalton v. Spencer, where the Court relied on
Franklin’s reasoning to reject an APA challenge to the President’s decision to approve the closure of a
naval shipyard. Otherwise, however, the Court has not further elaborated on the scope of the presidential
exception to the APA. Lower courts have explored the ramifications of this case to a greater extent.
Franklin is often invoked as a justification to bar judicial review when a court is asked to review agency
action that is not yet “final” and may only become final through presidential action. If the critical step to
finalize an act must be taken by the President, courts may reject procedural challenges to interim agency
actions. Thus, the D.C. Circuit has held that “Franklin is limited to those cases in which the President has
final constitutional or statutory responsibility for the final step necessary for the agency action directly to
affect the parties.”
Critically, although the APA’s procedural limitations may not apply to presidential action, other laws may
govern the President’s rulemaking authority. As the Supreme Court has said, the President only has the
power to issue an executive order if authorized by “an act of Congress or . . . the Constitution itself.”
Courts may review claims that the President’s action was unauthorized. In issuing Executive Order
13843, excepting ALJs from the competitive service and amending Civil Service Rule VI, President
Trump invoked 5 U.S.C. § 3302, which states that “the President may prescribe rules governing the
competitive service.” There is precedent for this direct amendment of the civil service rules: prior
Presidents from Harry Truman to Barack Obama have similarly amended the civil service rules by
executive order, and the civil service rules as a whole were initially promulgated in the late 1800s by
executive order.
Apart from 5 U.S.C. § 3302, a wide variety of statutes expressly vest the President with the authority to
make rules and regulations. Many of the statutes authorizing the President to make rules also place
substantive or procedural constraints on that authority. The D.C. Circuit has suggested that Franklin may
be distinguishable “where the authorizing statute or another statute places discernible limits on the
President's discretion.” 5 U.S.C. § 3302, the statute invoked in Executive Order 13843, provides that the
President may create “necessary exceptions of positions from the competitive service,” as “conditions of
good administration” may warrant. This language places substantive limitations on the President’s
authority: he may only create exceptions so long as they are “necessary” and warranted by “conditions of
good administration.” Other statutes create procedural limitations—some even require the President to
undertake “notice and comment.” (Whether these substantive and procedural limitations could be
enforced in court is a separate question and would likely depend on the nature of the suit and the
particular statutory provision invoked.)
Additionally, the APA will likely still govern the actions of executive branch agencies implementing a
presidential directive. Lower courts have suggested that this presidential exception will not “insulate . . .
from judicial review” any agency action implementing a presidential directive. In 1996, the D.C. Circuit,
quoting Justice Scalia’s concurring opinion in Franklin, announced that, “it is now well established that
‘[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the
officers who attempt to enforce the President's directive.’” The APA generally applies to any executive
branch authority that is not the President. Even where a statute does vest the President with rulemaking

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authority, if the President delegates that regulatory power to an agency, the agency will likely have to
follow APA rulemaking procedures when it exercises that power.
In the context of Executive Order 13843, it appears that the U.S. Office of Personnel Management (OPM)
will primarily be implementing the directive—the executive order directs OPM to adopt regulations and
provide guidance as necessary to implement the order, and OPM has already issued a guidance memo “to
address several issues that may arise as agencies” begin to implement the order. In the memo, OPM
announced that it will promulgate regulations to “address any provisions” in current regulations that are
“inconsistent” with the executive order. OPM’s memo also implicitly acknowledges that the presidential
order itself already effected some amendments to the civil service rules and seemingly advises agencies to
act accordingly. If OPM does act to amend existing rules, federal law expressly requires the agency to
follow APA’s rulemaking procedures.
Consequently, to determine when the APA’s procedural requirements apply, it becomes important to
distinguish presidential action from agency action, ascertaining the precise effect of the executive order
itself, as distinguished from the agency action that implements the order. Under Franklin v.
Massachusetts, it appears that the President’s issuance of the executive order was not itself subject to the
procedural requirements of the APA, even though the President did exercise statutory authority to engage
in rulemaking. But when OPM acts to implement the President’s order, it will presumably be subject to
the APA, and if OPM (or any other executive agency) acts to create, amend, or repeal any rules, it will
likely have to follow notice-and-comment rulemaking procedures.

Author Information

Valerie C. Brannon

Legislative Attorney




Disclaimer
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