Day: June 17, 2025

For decades, the Administrative Procedure Act (APA) has functioned as a bedrock of U.S. governance. Across presidential administrations, it has shaped how federal agencies promulgate, revise, and rescind regulations, and it has provided a consistent framework to promote public participation and enhance legal accountability. Recent and proposed efforts by the Trump administration to expedite or circumvent the APA’s requirements are unlikely to survive legal scrutiny.

The Trump administration has made clear its longstanding disdain for the administrative state—and for established principles of administrative law. Over the last several months, the administration has sought to shrink the federal government by slashing the federal workforce and by dismantling entire agencies. Those efforts have repeatedly run aground in the courts before judges appointed by presidents of both parties (including by President Trump himself).

Now, the administration appears to be pursuing a broader objective: a sweeping deregulatory campaign. In February, President Trump issued Executive Order 14219, directing agency heads to, “in coordination with their DOGE Team Leads and the Director of the Office of Management and Budget, initiate a process to review all regulations … for consistency with law and Administration policy” within 60 days. He followed up in April with a memorandum directing agencies to “immediately take steps to effectuate the repeal of any regulation, or the portion of any regulation, that clearly exceeds the agency’s statutory authority or is otherwise unlawful.” The administration’s deregulatory push is likely to unfold in the coming months.

The APA sets forth the process by which federal agencies are required to promulgate and rescind regulations. With certain limited exceptions, an agency is first required to publish a “notice of proposed rulemaking” in the Federal Register and provide an opportunity for public comment, usually over the course of thirty to sixty days. The agency then publishes a “final rule,” which includes a preamble that addresses the public’s comments and explains why the agency decided to follow its chosen course. Although some have correctly noted that the APA’s requirements can complicate effective governance, they remain legally binding and serve numerous essential purposes—among them, improving the quality of agency decisionmaking, promoting transparency, and allowing communities to weigh in on rules that affect them.

However, the administration is likely to try to circumvent these requirements for reasons both ideological and practical. President Trump and his advisors view the APA as a hindrance to their deregulatory agenda. And having depleted federal agencies of their staff, administration officials will struggle to muster the resources needed to complete the ordinary steps of the administrative process, like reviewing public comments and drafting Federal Register publications.

Indeed, the Trump administration has already attempted to circumvent the APA’s notice-and-comment requirements in a number of ways, as we describe below, including by attempting expansive uses of the APA’s narrow exceptions and by using unconventional mechanisms to nullify rules. Although these efforts largely have yet to be reviewed by the courts, they conflict with established precedent concerning the APA and should be struck down as unlawful. Moreover, they are likely harbingers of what is to come.

Below, we outline several approaches the administration is taking and explain why many are unlikely to survive legal scrutiny, with reference to rules and doctrines also described in Governing for Impact’s new APA Library.

Invoking Direct Presidential Authority

To start, the Trump administration has gestured, at least, toward a broad interpretation of the President’s Article II authority that would permit the President to override the APA’s notice-and-comment requirements. In Executive Order 14264, President Trump directed “the Secretary of Energy to publish in the Federal Register a notice rescinding” the Department’s rule defining the term “showerhead” under the Energy Policy and Conservation Act. That order contained a brazen, if somewhat Delphic, assertion: that, according to the President, “[n]otice and comment is unnecessary because I am ordering the repeal.”

That statement could be interpreted in at least two ways. First, it might be an assertion of inherent Article II authority to countermand the APA’s notice-and-comment requirements. But absent some specific statutory authority—and we are aware of no such authority under the Energy Policy and Conservation Act or otherwise—agencies may not bypass applicable notice-and-comment requirements on the President’s say-so. Under Article II, executive branch agencies “are duty-bound to give effect to the policies embodied in the President’s direction,” but only “to the extent allowed by the law.”

Second, the President’s statement could be interpreted as an invocation of the APA’s “good cause” exception, which allows an agency to skip notice and comment where it “for good cause finds” that notice and comment is “unnecessary,” among other bases. But courts have repeatedly held that the APA’s exceptions are to be “narrowly construed and only reluctantly countenanced.” In particular, the unnecessary prong “is confined to those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry … and to the public.” Neither a presidential directive, nor “[b]ald assertions that the agency does not believe comments would be useful,” is sufficient to meet that standard.

The Trump administration’s subsequent actions suggest that it lacks confidence in either interpretation. Shortly after Executive Order 14264 was issued, the Department of Energy published a final rule repealing the prior showerhead definition. That rule nodded to the President’s directive and the good cause exception, but also noted that the showerhead definition was “an interpretive rulemaking,” and such rules are exempt from notice and comment under another of the APA’s exceptions. Nevertheless, the administration’s Article II argument may well reappear.

Deeming Prior Rules “Unlawful”

The showerhead order is not the only time the Trump administration has advanced a questionable interpretation of good cause. The President’s aforementioned April memorandum—issued the same day as the showerhead order—mandated that, “[i]n effectuating repeals of facially unlawful regulations, agency heads shall finalize rules without notice and comment, where doing so is consistent with the ‘good cause’ exception.” According to the memorandum, “[r]etaining and enforcing facially unlawful regulations is clearly contrary to the public interest,” and “notice-and-comment proceedings are ‘unnecessary’ where repeal is required as a matter of law to ensure consistency with a ruling of the United States Supreme Court.”

As we’ve explained, neither theory withstands scrutiny. The D.C. Circuit has rejected the argument that “notice and comment requirements do not apply to ‘defectively promulgated regulations.’” Such a theory “would permit an agency to circumvent [those] requirements of [the APA] merely by confessing that the regulations were defective in some respect,” and “ignore the fact that the question whether the regulations are indeed defective is one worthy of notice and an opportunity to comment.”

Indeed, neither of the two good cause grounds cited by the administration seem applicable. As to “unnecessary,” which we’ve addressed above, we need only add that the public, including expert legal advocates, may have valuable insights into whether a given regulation is unlawful and, if so, how an agency should respond to any legal deficiencies. And the “public interest” prong is “is met only in the rare circumstance when ordinary procedures—generally presumed to serve the public interest—would in fact harm that interest.” The exception is only “appropriately invoked when the timing and disclosure requirements of the usual procedures would defeat the purpose of the proposal.” The April memorandum provides no basis for such a conclusion, and it is unlikely that agencies following the memorandum will be able to substantiate it.

Nor is the administration likely to limit its deregulatory efforts to regulations that suffer from clear legal deficiencies. The April memorandum directs agencies to consider existing regulations under ten recent Supreme Court decisions. But the application of those decisions—assessing, for example, whether a regulation constitutes a “major question” or failed to adequately consider “costs”—will not be entirely straightforward. To the extent the administration adopts an overbroad or erroneous understanding of those decisions, its actions will be subject to challenge.

Overuse of Direct Final Rules

The Trump administration has arguably attempted to stretch the “unnecessary” prong of the APA’s good cause exception in yet another way: by liberally issuing so-called “direct final rules.” Direct final rules are not preceded by a proposed rule; they are accompanied by a request for comment and automatically go into effect unless an adverse comment is received, in which case the agency goes through the traditional rulemaking process before making the rule effective. Their basis in the APA is subject to some debate, but one theory is that they rely on the good cause exception: comment is unnecessary where a rule is so mundane that nobody cares to oppose it.

Examples from the initial months of President Trump’s second term, however, indicate that the administration does not intend to reserve direct final rulemaking for mundane matters. On a single day in May, the Department of Energy published thirteen direct final rules on a wide range of topics. One eliminated a requirement that grant recipients “that sponsor sports teams for members of one sex … allow members of the opposite sex to try out for the team” in certain situations, asserting that such requirements “ignore differences between the sexes which are grounded in fundamental and incontrovertible reality.”

Was this a “routine determination, insignificant in nature and impact, and inconsequential”? Hardly, as indicated by the more than 1,500 comments submitted so far. Nor did the direct final rule “incorporate[]” a good cause finding “and a brief statement of reasons therefor,” as the APA requires when invoking the good cause exception. Affected communities should keep a close eye on the administration’s efforts to use direct final rules to implement substantive policy changes, particularly if there are indications that agencies are ignoring significant adverse comments.

Expanding Other Notice-and-Comment Exceptions

The Trump administration’s attempts to exploit the APA’s notice-and-comment exceptions have not been limited to good cause. Two other exceptions warrant particular attention: the APA’s “foreign affairs” exception and its exception for rules related to “public property, loans, grants, benefits, or contracts” (what we call the “proprietary” exception).

As to the foreign affairs exception, the Secretary of State issued a sweeping determination in March that “all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States”—i.e., all matters relating to immigration and foreign trade—“constitute a foreign affairs function of the United States under the [APA].” That is anything but the “narrow construction” that the APA requires. Indeed, courts have warned that “[t]he dangers of an expansive reading of the foreign affairs exception in th[e immigration] context are manifest,” because “it would be problematic if incidental foreign affairs effects eliminated public participation in this entire area of administrative law.”

In contrast, the proprietary exception is admittedly broad—courts have recognized that, “even construed narrowly, [the exception] cuts a wide swath through the safeguards generally imposed on agency action.” But that is precisely why multiple agencies have, at the recommendation of the Administrative Conference of the United States, voluntarily waived the applicability of the exception. Unfortunately, the Secretary of Health and Human Services rescinded that agency’s so-called “Richardson Waiver” in March, reversing a fifty-year-old policy in a short notice with scant reasoning. To the extent HHS relies on the revocation of the Richardson Waiver to rescind rules without notice and comment, courts may find the revocation itself to be arbitrary and capricious.

Relying on the Courts

The Trump administration has also tried to eliminate regulations outside the standard regulatory process by reversing course on several pending legal challenges. These efforts have taken multiple forms, including declining to appeal adverse judgments, acquiescing in plaintiffs’ requests for vacatur of challenged rules, and agreeing to rescind rules as part of settlements.

Although the executive branch possesses broad discretion in resolving litigation against the United States, such decisions are most problematic when they purport to grant relief beyond the plaintiffs in a given case or to limit the legitimate policy discretion of a future administration. These complicated issues have been the subject of dueling executive branch memoranda over the course of several decades, and we do not attempt to resolve them here. However, the Trump administration should not expect that courts will simply rubber-stamp its efforts. As Chief Justice Roberts, writing for Justices Thomas, Alito, and Gorsuch, emphasized in 2022, there are “important questions” about whether these attempts at “rulemaking-by-collective-acquiescence … comport with the principles of administrative law.” We agree, and expect that courts will have more to say on this front.

Non-Enforcement of Rules

In situations where the Trump administration is unable to repeal rules immediately, it appears to have devised a fallback approach: declining to enforce them in the interim. Indeed, it has already done so with respect to an array of vital consumer protections as well as a rule limiting miners’ exposure to hazardous silica dust. The administration seems likely to seize on the Supreme Court’s 1985 decision in Heckler v. Chaney, which held that an agency’s decision not to initiate a specific enforcement proceeding is presumptively immune from judicial review.

As we’ve explained, however, the situation in Heckler is worlds away from a categorical decision by an agency not to enforce a rule that remains on the books. Heckler itself recognized that an agency would open itself up to challenge if it abdicated its statutory responsibilities or entirely declined to enforce a valid rule. After all, “an agency issuing a legislative rule is itself bound by the rule until that rule is amended or revoked.” By the same token, an agency generally cannot stay a legislative rule that has gone into effect without going through notice and comment. These principles would be meaningless if an agency could nullify a duly promulgated rule through mere neglect.

Conclusion

The Trump administration is poised to expand its use of these tactics, among others, as part of its broader deregulatory agenda. But rather than devising increasingly creative (and legally dubious) strategies for circumventing the APA’s notice-and-comment requirements, it should recognize the value of robust public participation in the regulatory process. At a minimum, these efforts risk setting a damaging precedent—one that future administrations, perhaps with very different views of the role and merits of regulation, could likewise exploit.

The post The Legal Defects in the Trump Administration’s Attempts to Deregulate Without Notice and Comment appeared first on Just Security.

The creatures of the Atlantic Ocean will shimmy up the beach and onto the boardwalk on June 21 as the 43rd annual Coney Island Mermaid Parade returns to mark the unofficial start of summer in Brooklyn.

Around 5,000 participants are hard at work sewing together their homemade costumes and finishing up their lavishly-decorated floats, according to Coney Island USA, which hosts the event each year. They’ll be accompanied by marching bands, drill teams, and antique cars — plus thousands of spectators. 

Billed as the largest art parade in the country, the Mermaid Parade is a celebration of “ancient mythology and seaside ritual,” according to Coney Island USA, and is one of the borough’s most beloved traditions. 

Every year, participants build and rebuild their glittering floats and costumes to fit new themes and stories. At the end of the route, they show off for the judges — who confer and award prizes for the best floats, costumes, and musical groups. 

For some, taking part is pure fun. Longtime participant Ricco Rodriguez, for example, builds the Tractor Pirates float almost singlehandedly every year before his friends and family gather to finish up the fine details hours before the parade. 

Others are using the glittering procession to convey a more serious message about protecting Coney Island, the beach, and all its inhabitants from pollution and climate change. But no matter what, marchers say the Mermaid Parade is a symbol of real New York tradition and joy. 

Last year, Jan Aiello — who marched the route with her husband and son and their two puppets, both meant to warn about environmental destruction — told Brooklyn Paper the parade was “the antidote to that 21st century despair.”

At the head of the procession, rolling through the route in an antique wicker chair, will be this year’s Neptune King and Mermaid Queen, Eugene Hütz and Queenie Sateen. 

“Our King and Queen this year are two amazingly talented and artistic New Yorkers,” said Coney Island USA artistic director Adan Rinn, in a statement. 

Hütz is a singer from the band Gogol Bordello, which “basically created Gypsy punk,” Rinn said, while Sateen is a longtime fixture of the local club scene with a new solo single to be released just after the parade. 

“We’re so excited to welcome these two boundary-pushing artists as our royalty,” Rinn said.

The 2025 Mermaid Parade will kick off on June 21 at 1 p.m. The route starts at the corner of West 21st Street and Surf Avenue, rolls down Surf Avenue to West 10th Street, then turns down to the Boardwalk where it ends below the Parachute Jump. 

Tens of thousands of spectators attend each year, and all New Yorkers are invited to dress up and take part in the parade. Advanced registration closes on Tuesday, June 17, but latecomers can register in-person on the morning of the parade starting at 10 a.m. 

And all participants can take part in judging and try to win one of a series of awards for best costumes, best floats, and more. Bribery is not just allowed, but encouraged, per the Coney Island USA website, as a chance for “a little extra creativity.”

After the parade, participants and spectators alike can follow Rinn, the Mermaid Queen and the Neptune King down to the beach for an annual ceremony where they toss fruit into the ocean as an offering and mark the officially-unofficial opening of the beach for the season. The celebration will continue through the night at the ticketed Mermaid Parade Ball at the Sandbar on Surf Avenue.

The post Mermaids and glitter abound as the Coney Island Mermaid Parade returns on June 21 first appeared on Audio Posts – audio-posts.com.

New Youth Basketball Training Facility Coming to Brooklyn this Fall

Young basketball enthusiasts have something new to look forward to this fall with the news that BSE Global, the parent company of the Brooklyn Nets and New York Liberty, will open a multi-court youth basketball training facility opposite Barclays Center. Operated by BSE Global’s flagship youth basketball program, Brooklyn Basketball, the almost 19,000 sq. ft. Brooklyn Basketball Training Center will allow the program to better support young players and unlock their full potential on and off the court. The program ignites passion, builds skills, and empowers young athletes, making the game more accessible than ever.

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“We are excited to further enhance the area surrounding Barclays Center with our Brooklyn Basketball Training Center available to all, right in the heart of Brooklyn, as we continue to help grow the sport across the borough,” said Marissa Shorenstein, Chief External Affairs Officer, BSE Global. “This initiative is about more than just basketball—it’s about creating a safe, inclusive space where young people can learn, grow, and connect – and by continuing to invest in our community programming, we’re building a stronger foundation for the future of the game and the neighborhoods we call home.” 

Brooklyn Basketball has been working with the New York City Department of Education for the past several years to bring a first-of-its-kind program offering free in-school basketball clinics for elementary and middle school students in Brooklyn. Reaching over 200 schools annually, children are given the opportunity to grow athletic and leadership skills while acquiring a love for the sport. In addition, Brooklyn Basketball provides community clinics across the borough in conjunction with partner community organizations, affecting approximately 40,000 kids each year.

Expanding on Existing Programs Enhances the Experience for Kids

The new facility goes well with Brooklyn Basketball’s existing community programming by offering after-school and weekend training, camps, daily clinics, advanced training, and all-girls programs, and other activities. The Training Center will also serve as a place to do homework and care for other needs before and after training. There will be a parents’ area as well. Kids will also take advantage of the two full courts, a “shooting lab” half court, auxiliary baskets, cutting-edge technology, and expert coaching to further enhance their skills. The center will also be home to Brooklyn Basketball’s newest after-school program that will launch for the upcoming school year, featuring age and skills programs for ages 6-14 on weekdays, with Wednesdays devoted to all-girls training.

“I have personally witnessed the way the game of basketball enriches the lives of young people all over the world, and the opportunity to open a state-of-the-art Brooklyn Basketball training center, right across the street from Barclays Center, is an exciting one for our community,” said Jordi Fernández, Head Coach of the Brooklyn Nets. 

The Brooklyn Basketball Training Center will be an asset to the area, encouraging the community’s youth to set their aim high and keep their eyes on the ball. 

“The Brooklyn Basketball Training Center is a game-changer, not just for basketball, but for the entire Brooklyn community,” said Sandy Brondello, Head Coach of the New York Liberty. “It’s about giving the next generation a space to learn the fundamentals, be inspired, and create a sense of community that basketball so brilliantly provides. We aim to build the future of the game and empower our community, especially young girls, to dream big. Who knows? Some of them might be playing across the street at Barclays Center for the New York Liberty one day.”

Registration for fall programming is open now at brooklyn-basketball.com.

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