Given the complexity of the process, especially during a change in administration, AGC offers a series of information on the executive branch and its primary functions. Members should understand that deregulatory changes only take effect after executive orders are backed by regulatory action, a process that usually takes 12-18 months.*
Executive Orders
One of the ways a president changes policy is by signing executive orders. Executive orders are directives from the president that instruct executive agencies and direct the operations of the federal government. They are not laws. They are not regulations. It’s a boss telling his employees how he wants to see things done. For those of us outside the government, executive orders serve as indicators of a President’s policy priorities and as a precursor to major regulatory action. They drive change, but don’t always make changes on their own. Furthermore, executive orders must be based on authority granted by the U.S. Constitution or delegated by Congress through statute. They cannot create new law on their own nor can they contradict law—they must operate within the bounds of existing legal authority.
As an example, consider the recent removal of the Council on Environmental Quality’s (CEQ) implementing regulations for the National Environmental Policy Act (NEPA). This was done as a response to President Trump’s directive in Executive Order 14154, Unleashing American Energy. But while the change was driven by the President’s order, it didn’t become effective until CEQ completed the regulatory process. Which, if you were wondering, they did on April 11th.
The Deregulatory Process
Regulations don’t change overnight because the President issues an executive order. While that may get things started, federal agencies are bound by a law called the Administrative Procedure Act (APA), a bedrock law enacted in 1946. The APA requires a process called ‘notice and comment’ before any regulation can be put into effect, changed, or removed. The APA requires the same process for deregulation as the creation of new regulations.
This means that the government has to let people know what they’re doing and give them a chance to share their opinion. The government posts these notices on federalregister.gov and the public has the ability to submit comments on those proposals on regulations.gov.
The APA requires the government to consider the issues raised by the comments – to a varying degree – and to publish a final rule explaining their thinking on those issues – again to a varying degree. AGC frequently submits public comments to explain how a certain proposal will impact the construction industry and has often had success in influencing the final rule. Our regulatory goals are outlined in our Deregulatory Wishlist, which informs our ongoing conversations with federal agencies.
When reading and watching the news about Presidential actions, you should remember that there is a legally required and regimented process that takes time and allows for public participation before anything can change. The notice and comment process usually takes around 12-18 months to complete, with significant regulations often taking years.
Since Presidential administrations seem to be relying more and more on their authorities within the executive branch, AGC recently hired a new Counsel for Regulatory and Litigation Affairs. 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.
* AGC is closely reviewing an April 9 memo that directs federal agencies to skip notice and comment procedures when repealing regulations pursuant to certain Supreme Court rulings.