The Administrative Procedure Act (APA) of 1946 sets out how the executive branch has to operate on rule making and public input. An agency must propose a rule, publish the draft with significant time for the public to read and comment on the rule, and then respond to relevant comments in the final rule. Non-response to relevant comments gives opponents of the change in the rule an attack surface to sue to stop or at least substantially delay the rule.
Quite a few federal employees are needed to write proposed rules, read and respond to comments, and then craft a final proposed rule that will have a robust chance of standing up in court against an APA challenge. These federal employees likely need substantial subject matter expertise and tacit knowledge of which comments are meaningful and need a big response and which ones can be brushed off. It is not an easy job.
News: HHS has no plans to rehire 20 percent of the employees it fired earlier this week, despite RFK Jr.’s assertion yesterday that doing so was “always the plan.”
“No such plan is in the works,” a person familiar w/ the department’s planning tells me.
www.politico.com/news/2025/04…— Adam Cancryn (@adamcancryn.bsky.social) April 4, 2025 at 8:19 PM
I’m tracking on LinkedIn and other networks folks who are getting RIFed or placed on administrative leave at CMS and HHS. I am seeing a lot of people who have been around the block several times in multiple administrations announcing their RIFs and availability for new work. These are the people who know how to look at a 3000 word, 50+ citation literature review of a comment that I’m prepping, identify my key points and figure out how to mostly do what CMS political appointees wanted to do while responding to my comment in a way that does not put the agency into high APA litigation risk. I’m seeing this at HHS and CMS as this is where my head lives. I would be shocked if other agencies aren’t experiencing the same brain drain.
I’ve encouraged people to write comment letters before as an act of active citizenship. Given the gutting of the career staff, agencies are losing a lot of operational knowledge of how to appropriate respond to substantive comments in a timely manner for the final rule. If you don’t like what the Trump Administration is proposing, comment and make them respond competently. That is a bet that is much easier to win today than in 2019.
Update from Our Friends in Michigan
piratedan
well, really what more can you expect, they were questioned, responded with a lie, that the media faithfully reported and now expect to just keep on trucking because the Media is only concerned with what the GOP says, not with what they actually do.
Butch
Can I just throw in, since I’ve done coding on a lot of comments for federal proposals….a comment that just says “I’m for” or “I’m against” goes into a category called “nonsubstantive” and isn’t considered further. It’s not a vote. Your comment must sound like you’ve actually read the proposal and have something to say about it, legally, scientifically, administratively, morally, something….
H.E.Wolf
Thank you for this suggestion! I haven’t written a comment letter before, but following your links led me to a post you wrote in Feb. 2020, and voilà:
https://www.regulations.gov/
I thought of you last Friday when Electoral Vote posted their weekly good news article:
https://www.electoral-vote.com/evp2025/Items/Apr04-8.html
The link inside the article had some humorous details, of which my favorite was how the female project leader(s) waited outside the men’s bathroom – the word they used was “stalked” – for the CEO to emerge, and then buttonholed him. And voilà again: a gorgeous new hospital.
japa21
@H.E.Wolf:
Sounds like something Suzanne would do.
Martin
Yeah, this is where I was saying that career administrators have a lot more power than people realize as it’s places like this you get to throw your sabots into the gears.
But as the first sentence notes ‘the executive branch has to operate on rule making’, only works if there is a respect for the law. It’s the adherence to the law that gives you that power. If they ignore the law, and are allowed to ignore the law, you can’t do shit.
One of my big questions is how are they processing all of these terminations with the staffing they have? The institution isn’t designed to do that, and I have to assume that for a lot of these workers they are ‘fired’ but not fired, they are owed things from the government but are not receiving it. And I think the answer is they just don’t care if it’s done legally or not.
So I’ve written a number of comment letters already but my sense is that if we were to challenge any of this stuff legally, the administration would just tell the courts to fuck off as they have done pretty much everywhere else.
And I think this is the lack of imagination thing I mentioned in the previous thread. David assumes the federal government is a functional entity, because he can’t do his job if it’s not (this is not a criticism, it’s just how people work). But what if it’s not? How do you operate in that environment.
At the start of Covid my question to my leadership was ‘what if we never receive direction on how to address Covid and people start dying and we are forced to choose between closing and watching people die’. And that’s unfortunately exactly what happened, and they weren’t ready for that possibility. It was outside their imagination. It took weeks to get it inside their OODA loop.
I don’t mean to be debbie downer here, but it seems to me that the administration is already openly defying well held norms and legal precedents much more substantial than administrative rule-making. I’m not sure why that part would hold when the others haven’t.
Regardless, it is a good exercise in civic engagement. It will make you feel better and it will inform you on how this stuff works so that when we pop out the other end, you’ll know how to engage with it (and when we get to rebuilding, that’s going to be SUPER important).
Martin
@Butch: yes, this is an important element to it. I’ve always written comments as an expert in the domain in question, usually to point out a contradiction or conflict that is being overlooked that should force them to address in the rule making.
SpaceUnit
Have to agree with Martin. No one will be enforcing the APA and your letters are going straight into the shredder.
SpaceUnit
Yeah I’m just a little ray of sunshine these days.
A Ghost to Most
Good times. Maybe we will return to that in time. For now, the rules have changed. We will need to be more forceful.
David Anderson
@SpaceUnit: litigation fodder
Another Scott
Thanks for this, David.
Of course, even as they decimate the agencies, the rules and the laws and the work remains. The procedures and the courts remain. It’s important to go through the processes even when the monsters want us to give up.
Every avenue of opposition and every institutional lever must be used and not surrendered to the monsters. Especially not surrendered in advance.
So, informed public comment is probably more vital now than before.
They wanted the job – Make them do the work.
My $0.02.
Best wishes,
Scott.
SpaceUnit
@David Anderson:
I’d like to think so but I don’t think this administration intends to comply with court orders or court rulings. They’re going to be completely lawless.
They just blew off the court order to retrieve the innocent man they sent to a San Salvadoran prison. Can’t imagine them complying with any court rulings regarding the APA.
catclub
All the companies that wanted Consumer financial Protection Bureau off their backs now need the workers back to actually re-write the new permissive rules., Officially revoke (via proposal and comment) all the present rules. Too bad they were all fired.
The present situation is: The Trump admin will not enforce the rules, but the rules have not been revoked the right way, so the next admin that wants to enforce them will have them. Also applies to SEC crypto/ securities regulation.
H.E.Wolf
@japa21: Hee hee! Yes. The woman who got things rolling in this case was a nurse/manager, but I think she and Suzanne would see eye to eye.
David Anderson
@Martin: Martin — I can see what you’re saying, but not writing the comment letters with the expectation that the administration will ignore both the comments and any adverse APA rulings by judges is complying in advance.
My intent on writing comment letters on things I know a bit about is to do good if possible. And if that is not possible, to be part of a process that forces that administration to be explicit, overt and obvious in their law breaking.
Snarki, child of Loki
My bet: Swollen Nuts, and the rest of the DOG-E crew will have ChatGPT write the responses to public comments.
And it will work about as well as you would expect. I wonder if someone could ‘poison’ the ChatGPT input as they use it to generate responses?
Anonymous at Work
@David Anderson: thanks. Was about to make same statement. IF a comment is made and it is relevant and does not receive a response by either a revised Final Rule or a reasoned rejection by the rulemaking agency, then the Final Rule can be challenged.
Jay
@SpaceUnit:
The case comes up for sanctions against the DOJ this week.
Anonymous at Work
@Anonymous at Work: p.s. Food and Drug Administration waited out Trump #1 to update a ton of rules, spent Biden’s term drafting, and now needs to revise a ton of technical rules.
Even better, OHRP and SEC. of HHS are due to update a ton of rules from 2017 that had five to seven year updates.
Martin
@David Anderson: Well, this isn’t really complying in advance. We’re not being asked to do something here.
And I’m not arguing people shouldn’t comment, I’m arguing they shouldn’t add commenting as a new tactic as compared to other tactics – particularly ones with more visibility and which impact these people in the areas that they care about. Do you really think they care about winning or losing a rule-writing effort? We care, but they don’t.
If you’re going to add an activity, these people care about money and safety, and those are the things to go after. Protesting at Tesla dealerships does that. Protesting in front of their houses does that. Getting in their face when they go out to dinner does that.
Influencing rule writing worked better in Trump 1, but I don’t think it’ll matter in Trump 2. IMO we should pick better places to not comply in advance.
Ralph the Dog
An on-topic comment and an aside.
On topic comment: commenting on proposed rules is important and useful. As was said above, it’s no substitute for all the public pressure and activism and protest and getting constitutionalists elected to everything from dog catcher to president. But we also need to create the records in all our institutions. The APA tries to ensure transparency and accountability and the opportunity for public participation. Among the many lies coming from this overflowing port-a-potty of an administration is the pledge to bring transparency to the Government – WE ALREADY HAVE TRANSPARENCY. Notice and comment and public participation in rulemaking. Reporting of contracts and grants. Public notice of all contract opportunities and awards. Public notice of grant opportunities and awards. Excellent statistical reporting and top notch analysis.
So the aside is that I work for NIH in acquisitions. I’m the link between our scientists and program officers, on the one hand, and our supporting office of acquisition. Virtually all of NIH’s offices of acquisition were fired last Tuesday, including the dozen or so contracting officers directly supporting my institute. Half an hour later they were told they had 60 days of employment to “transition”, but there is no plan for what that transition is.
So I have contracts expiring, software licenses expiring, labs running out of supplies, laboratory instruments failing, and very little way to meet those needs. I have a limited contracting officer warrant, but can’t solicit and award the several hundred contracts we need; even our dozen contracting officers were hard pressed to keep up. What’s more, HHS passed along the DOGE command that we review several hundred contracts and cut 35% of them? By Monday morning – tomorrow. Except they fired all the contracting officers who have the authority to terminate or renegotiate those contracts.
So back to the APA: All of federal contracting is based on a set of regulations that were published and commented on and reviewed under the APA. As a contracting officer, everything I do is in accordance with those regulations. Yes, it’s a PITA and there is much I would change, but the regulations are thorough and for the most part ensure the government gets the best value for its contracting dollar.
When I’ve had a question of interpretation, I’ve gone back to the proposed regulation and agency comments to see if that helps understand the final text. I’ve also in my personal capacity, from my home computer, on my own time, commented on proposed regulations that I have some substantive knowledge about (or at least an opinion).
It’s demoralizing to have the administration tell me the rules don’t matter, when they DO matter. I’ll keep following the acquisitions rules because it’s the right thing to do, and they are valid and rational and enforceable, but it’s hard not to say “why bother?”
Gvg
@Martin: it depends on people’s experience maybe. If they know how to do this effectively, they should probably do it. If they know something else that is one of the ways to resist, that is what they should do. It’s like having a mixed crowd walk into a hiring hall and there are a lot of things that need doing. Unlike a normal election cycle which might have about 5 kinds of tasks for volunteers, this counter revolution has a lot to do AND doesn’t yet know which strategy is going to work best, plus always have back up plans etc. So, don’t drop something you are already doing, especially if you are good at it or made promises but if you were watching and thinking you couldn’t do those things, but this fits you, jump on it AND nobody discourage another’s ability/choice OK?
David Anderson
@Snarki, child of Loki: don’t need to poison it. Chat GPT is a next word prediction engine and routinely spurs out text that sounds plausible until someone who knows the subject area reads it and laughs.
am
@David Anderson:
Thank you for the reminder to comment on rules. It’s worth the effort. So much is going on – and in a flood the zone strategy, hardly surprising – that I have dropped this. I appreciate your mentioning it again.
If it isn’t too much effort would you drop an example or two of public comments you think are good examples? I found https://publiccommentproject.org/comment-examples-index#examples-energy but trust you more.
Jim Appleton
@am: Seconded.
Also, a heads up with explainer for rules which you think are especially important, with as much detail as you can provide for why that is.
For example, there’s currently a comment period open for CMS-9884-P, on Marketplace Integrity and Affordability of the Patient Protection and Affordable Care Act. I’ve only gotten to the Executive Summary. It’s a long and deeply nuanced beaurobabble, clearly crafted by the current wreackingball regime, but hard for the layman to spot the moles to whack.
Any waypoints for public comment here and ongoing will be appreciated, and just might make a positive difference.
Ruff the dog
My trenchant and insightful comment went into moderation, or maybe tumbolia, because I couldn’t remember my nym on my other computer. If you see a moderated comment from Ralph the dog it was me. And it was so memorable I can’t reconstruct it now.
Ruff the Dog
** Got home and it was still on my clipboard!
An on-topic comment and an aside.
On topic comment: commenting on proposed rules is important and useful. As was said above, it’s no substitute for all the public pressure and activism and protest and getting constitutionalists elected to everything from dog catcher to president. But we also need to create the records in all our institutions. The APA tries to ensure transparency and accountability and the opportunity for public participation. Among the many lies coming from this overflowing port-a-potty of an administration is the pledge to bring transparency to the Government – WE ALREADY HAVE TRANSPARENCY. Notice and comment and public participation in rulemaking. Reporting of contracts and grants. Public notice of all contract opportunities and awards. Public notice of grant opportunities and awards. Excellent statistical reporting and top notch analysis.
So the aside is that I work for NIH in acquisitions. I’m the link between our scientists and program officers, on the one hand, and our supporting office of acquisition. Virtually all of NIH’s offices of acquisition were fired last Tuesday, including the dozen or so contracting officers directly supporting my institute. Half an hour later they were told they had 60 days of employment to “transition”, but there is no plan for what that transition is.
So I have contracts expiring, software licenses expiring, labs running out of supplies, laboratory instruments failing, and very little way to meet those needs. I have a limited contracting officer warrant, but can’t solicit and award the several hundred contracts we need; even our dozen contracting officers were hard pressed to keep up. What’s more, HHS passed along the DOGE command that we review several hundred contracts and cut 35% of them? By Monday morning – tomorrow. Except they fired all the contracting officers who have the authority to terminate or renegotiate those contracts.
So back to the APA: All of federal contracting is based on a set of regulations that were published and commented on and reviewed under the APA. As a contracting officer, everything I do is in accordance with those regulations. Yes, it’s a PITA and there is much I would change, but the regulations are thorough and for the most part ensure the government gets the best value for its contracting dollar.
When I’ve had a question of interpretation, I’ve gone back to the proposed regulation and agency comments to see if that helps understand the final text. I’ve also in my personal capacity, from my home computer, on my own time, commented on proposed regulations that I have some substantive knowledge about (or at least an opinion).
It’s demoralizing to have the administration tell me the rules don’t matter, when they DO matter. I’ll keep following the acquisitions rules because it’s the right thing to do, and they are valid and rational and enforceable, but it’s hard not to say “why bother?”