This article is Part Two of a series covering the executive branch of the government and the processes federal agencies will use to achieve the President’s goals. Part One of the series covered executive orders and the regulatory process. AGC developed our Deregulatory Wishlist to support the agencies during the deregulatory push.
In his first 100+ days, President Donald Trump issued a host of executive orders and memorandums aimed at advancing the administration’s deregulatory agenda. Relevant documents include:
- EO 14192: Unleashing Prosperity Through Deregulation
- EO 14219: Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative
- EO 14267: Reducing Anti-Competitive Regulatory Barriers
- EO 14270: Zero-Based Regulatory Budgeting To Unleash American Energy
- Presidential Memo on Directing the Repeal of Unlawful Regulations
To propose, finalize, or rescind a regulation that can be successfully defended in court, agencies develop what is called an administrative record. An administrative record is a compilation of all materials – written and electronic – that were considered by agency decision-makers during the regulatory process. These materials can be reviewed by a court when evaluating the merits of an agency’s choice or the sufficiency of its process.
Currently, agencies are hard at work developing the administrative record for the president’s policy objectives. Many agencies are wisely reaching out to the public to provide materials that agencies can use during the deregulatory push. AGC has been extremely active in providing agencies with the construction industry’s priorities and the technical information agencies need to support reasoned decision making.
AGC has also updated our Deregulatory Wishlist, which the association originally published back in March. We have already provided the wish list in some form to the Office of Management and Budget, the Department of Transportation, the Department of Labor, the Small Business Administration, the White House Office of Public Liaison, and the Environmental Protection Agency. The items on AGC’s Deregulatory Wishlist align with President Trump’s recent executive orders (listed above) requiring the agencies to rescind rules that lack statutory authority, are anti-competitive, impose significant economic burdens, or lack proven benefits. AGC will continue to support the agencies’ deregulatory efforts by contributing to the administrative record over the course of the regulatory process.
Developing a robust administrative record helps the agency demonstrate that it was thoughtful and deliberate when making important policy decisions. In a foundational case called Motor Vehicle Mfrs. Ass’n v. State Farm, the Supreme Court explained that agencies have an obligation to show that the proposal or rescission was the product of reasoned decision making and to explain their thinking to the public. Notably, this case also reinforced the idea that the agency has a higher bar to clear when it changes policies from a previous administration: “An agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change.”
If you have any questions about the information presented here or about the executive branch at large or have information that you would like to see explained in the next part of this series, please reach out to Spencer Phillips, spencer.phillips@agc.org.