Notice & Comment

No Surprises? Texas Medical Association v. HHS: Part III

Summary: A recent district court decision, Texas Medical Association v. HHS, Dkt No. 6:21-CV-425 (E.D. Tex. Feb. 23, 2022), accessible on WESTLAW at Medicare & Medicaid Guide ¶307259 (C.C.H.), 2022 WL 597141, has troubling implications both for agencies’ traditional authority to create rebuttable presumptions and for the scope of Administrative Procedure Act section 553’s “good cause” exception permitting agencies to bypass notice and comment rulemaking. The decision invalidated a key provision of a regulation implementing a significant federal statute, the No Surprises Act, by reading the Act in a narrow textualist manner without acknowledging the contextual considerations set forth by regulators.  This is the third in a series of three blogposts exploring the decision.  The first post described the statute, the interim final regulations, and the district court decision. The second post offered a critique of the district court’s decision regarding interpretation of the relevant statutory multi-factor test. This post will critique to district court’s refusal to accept the relevant agencies’ “good cause” justification for bypassing notice and comment rulemaking.


What’s Wrong With the Agency’s “Good Cause” Determination?

The No Surprises Act imposed a one-year deadline to promulgate regulations.  Congress often imposes rulemaking deadlines.  Jacob E. Gersen & Anne Joseph O’Connell, Deadlines In Administrative Law, 126 U. PA. L. REV. 923, 939 979-81 (2008).  Gerson and O’Connell studied the impact of deadlines, both statutorily-imposed and judicially-imposed, upon agency rulemaking.[1]  They found that such deadlines do result in quicker promulgation of “significant” rules.  Id. at 945, 948.  But even for significant rules the time used to promulgate the rules exceeded one year; to be exact the average was 427 days (as opposed to 528 days for “significant” rules that did not have deadlines).  Id.  Moreover, the study showed that agencies more frequently use interim final regulations when faced with deadlines, as the Departments did here. Id. at 943-44.  Some agencies missed the deadlines altogether.

In Texas Medical Ass’n, the District Court rejected the Departments’ approach of relying on the “good cause” exception to promulgate interim regulations immediately while simultaneously seeking comment in order to meet a statutorily-imposed one-year deadline.

Circuit Precedent Regarding the “Good Cause” Exception

The federal courts of appeal have split on accepting such deadlines as a justification for the invocation of the “good cause” exception to notice and comment rulemaking. Two camps formed with respect to two major rulemakings (only one of which involved an actual deadline):  (1) an Environmental Protection Agency (“EPA”) rulemaking regarding implementation of the 1977 amendments to Clean Air Act,[2] and (2) the Attorney General’s regulation regarding the applicability of the Sexual Offenders Registration and Notification Act (“SORNA”).[3]  See, JEFFREY S. LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING 110-14 (6th ed. 2018); Deadlines in Administrative Law, supra, 126 U. PA. L. REV. at 956-59.    In each instance, the Fifth Circuit was among the Circuits that took a more stringent view of the invocation of the “good cause” exception.  U.S. Steel Corp. v. U.S. EPA, 595 F.2d 207, 214 (5th Cir. 1979), cert. denied, 444 U.S. 1035 (1980)(Clean Air Act); accord, City of Waco v. EPA, 620 F.2d 84, 86 (5th Cir. 1980); United States v. Johnson, 632 F.3d 912, 928 (5th Cir. 2011)(SORNA).

Neither the Clean Air Act Amendment regulations nor the SORNA regulations established a new system for resolving disputes between parties, such as the challenged No Surprises Act regulations created. And SORNA, at least, did not involve a deadline.  Moreover, the SORNA regulation addressed what the agency viewed as a simple binary choice, whether SORNA applied to offenders convicted of sexual offenses pre-SORNA.  The rule was essentially a codification of the Attorney General’s interpretation of the statute, to resolve litigation involving the the statute’s meaning.[4] 

Indeed, the No Surprises Act is more analogous to the rulemaking required by the Motor Carrier Act of 1980, which required the Interstate Commerce Commissions to adopt new rules to streamline its existing procedures for addressing motor carriers’ applications seeking various types of operating authorities.  American Transfer & Storage Co. v. ICC, 719 F.2d 1283 (5th Cir. 1983).  There, the Fifth Circuit upheld the invocation of the “good cause” exception, explaining

“to make the new Act effective and to achieve the goals set by Congress, it was imperative that the Commission, in order to adapt its processes to the new order, adopt almost immediately new rules and procedures with as much notice as was practicable. This it did by issuance of interim rules with invited public input before final regulations were issued.”  

Id. at 1294.  The Court observed: “Fortunately, courts uphold the exercise of such practical wisdom by regulatory agencies.”  Id.  Arguably, it is even more imperative for an agency to act when it must establish an entirely new system of adjudication, including the standards by which private arbitral bodies were to make consistent determinations, when there was not even an extant process to handle such disputes.

The Problems with the District Court’s Resolution of the “Good Cause” Challenge

The Departments, in view of the minimal time remaining before the deadline for the regulation expired, concluded that they had “good cause” to promulgate the IDR process rules as interim rules and solicit comments that the they would consider in revising the rule, if necessary.  As noted in Part I of this series, the Departments discussed the basis for their joint conclusion at some length.  Nevertheless, the District Court found the Departments’ invocation of the “good cause” provision inappropriate.  Granted, perhaps pre-existing Fifth Circuit precedent constrained the District Court.

Three points should be made regarding the District Court’s ruling.  First, while a year might traditionally be viewed as ample time to promulgate a rule, both developments in the past 40 to 50 years that have made rulemaking more time-consuming and the situation facing the Departments in implementing the No Surprises Act actually made one year a challenging deadline.  Second, the Departments’ assessment of the potential harm from proceeding with notice and comment appears reasonable, and was completely ignored by the District Court.  Third, it makes little sense to punish agencies for soliciting comments in conjunction with promulgating interim final rules to meet a deadline.  The remainder of this post will elaborate upon these three observations.

A Year Is Not As Long As It Used to Be

The timing of the No Surprises Act was odd;[5] it was enacted during a presidential transition period in which the White House would change from the control of one political party to the other.[6]  It can take some time for agencies to promulgate rules in the first year of a new administration. Typically the pace of rulemaking slows with the change of administrations, which have alternated from one party to the other since 1992. 

The “Reg Stats” page on the George Washington University Regulatory Studies Center website, see here, tells the story.  The graph showing the Economically Significant Final Rules Published by Presidential Year, shows dips in 1993, 2001, 2009, and 2017.[7]  Part of this may be due to the midnight regulation phenomenon, as agencies rush to complete rules in the last year of a presidential administration.[8]  Nevertheless, in the second year of administrations the number of rules almost invariably increases.  The “Reg Stats” page graphs representing Rules Published in the Federal Register by Presidential Year and the Number of Final Major Rules Published by Presidential Year appear to show a similar pattern.

Nor is the slower pace of rulemaking in the first year of a presidency surprising.  In the best of times, administrations face a daunting task in taking control of the rulemaking process.[9]  Anne Joseph O’Connell attributes this to “the lag associated with learning about the administrative state, finding and appointing agency leaders, having those leaders confirmed by the Senate, having confirmed leaders learn about their agencies and the rulemaking process, and other similar tasks.”  Anne Joseph O’Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 VA. L. REV. 889, 923 (2008).  And often new administrations must stop, or at least pause for review, regulations issued late in the previous administration’s term.  Jack M. Beermann & William P. Marshall, The Constitutional Law of Presidential Transitions, 84 N.C. L. REV. 1253, 1286 (2006).[10]

And the 2020-2021 transition was possibly the worst in American history, certainly since Inauguration Day was moved to January 20.  Center for Presidential Transitions, The 2020-21 Presidential Transition: Lessons Learned and Recommendations (Jan. 20, 2022). Officials who would be expected to play key roles in promulgating the No Surprises Act web of multifaceted regulations were not confirmed until mid-March.  Xavier Becerra, the HHS Secretary, was not confirmed until March 18, 2021; Marty Walsh, the Secretary of Labor, was not confirmed until March 21 (see here and here).  Lower level officials were confirmed even later.  Chiquita Brooks-LaSure, the head of the Center for Medicaid and Medicare Services, was not confirmed until late May, 2021 (see here).[11]

The congressional requirement that three Departments act in concert in promulgating the No Surprises Act rules only added to the challenge of expeditious promulgation of the rules.  Requiring such coordinated action is not the norm.  Many rules are promulgated by a single agency.  The need for coordination between three agencies surely can be expected to add time and complexity to producing proposed regulations for notice and comment.

In addition, with the increased demands placed on rulemaking over the past 40 years, the more exacting judicial review, the more intense Office of Information and Regulatory Affairs (“OIRA”) regulatory review, and the tendency to provide more than the minimal 30 days for notice and comment, the time between publishing a notice of proposed rulemaking and a final rule has surely expanded over the years.  See, Deadlines in Administrative Law, supra, 126 U. PA. L. REV. at 927. 

Rachel Potter’s study shows that the average time needed to promulgate a regulation is greater than 12 months.  RACHEL AUGUSTINE POTTER, BENDING THE RUES: PROCEDURAL POLITICKING IN THE BUREAUCRACY 138 (2019)(Figure 6.1). Granted, HHS’ Center for Medicaid and Medicare Services (coded “CMS (HHS)”), one of the three agencies involved in the No Surprises Act rulemakings, appears to get its regulations out quite quickly, according to the chart Potter provides.  But the median time for promulgation of a rule by the Department of Labor’s Employee Benefits Security Administration (coded “EDSA (Labor)”) appears to be nearly 12 months.  And at least 75% of Internal Revenue Service (coded “IRS (Treas)”) rules take over a year to promulgate, with the median being well in excess of a year.[12]

And there was something else happening during 2020-2021 . . .   What could it be? . . . Don’t tell me . . . (Ponder the picture below while I think . . .)

Memorial Ceremony January 19, 2021

Oh, yes, that right, A WORLDWIDE PANDEMIC.  The world, and the United States in particular, was dealing with a virtually unprecedented pandemic.  In January 2021 alone, more than 79,000 American died as a result of the pandemic (a record high monthly figure at the time).[13]  HHS was centrally involved in efforts to combat the COVID-19 pandemic.  And millions of employees, including federal government officials were working remotely. See, MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES re Integrating Planning for A Safe Increased Return of Federal Employees, etc. (June 10, 2021).

Finally, as the District Court itself noted, promulgating the No Surprise Act regulations was not a binary regulatory exercise, Texas Medical Assn v. HHS, supra, slip op. at 30, but one that required crafting a complex and nuanced web of regulations. Indeed, it involved a complicated multi-stage process of addressing a variety of issues regarding the financing of medical treatments, medical air transport, and pharmaceuticals.

Of course, Congress was aware of much of the above on December 27, 2020, when it enacted the No Surprises Act.  Congress could, of course, have explicitly waived the notice and comment requirements had it felt that necessary for the Departments to meet the one-year statutory deadline given the considerations set forth above.  See, United States v. Johnson, 632 F.3d 912, 928 (5th Cir. 2011); Texas Medical Assn, supra, slip op. at 26.[14]  Of course, Johnson was not a “statutory deadline” case.  More importantly, unlike the statute involved in Asiana Airlines v. FAA, 134 F.3d 393, 397-99 (1998), a case on which the Court in Johnson relied, the No Surprises Act did not establish any special procedure for the agency to follow in promulgating regulations; except that all three agencies act jointly, which they did.  

It is not clear that members of Congress gave any thought to the question of whether the deadline imposed was consistent with standard section 553 pre-promulgation notice and comment procedures.  But if they did, they might have believed that if the one-year deadline proved too constraining, agencies could invoke the “good cause” exception and proceed by interim rulemaking. Congress specifically authorized the HHS Secretary to use interim rulemaking.  42 U.S.C. §300gg-92 (“[t]he Secretary may promulgate any interim final rules as the Secretary determines are appropriate to carry out this subchapter.”)  Thus, the fact that Congress could have, but did not, expressly waive the notice and comment requirement, should not impact a court’s assessment of whether “good cause” exists for the Departments to use interim rulemaking to satisfy a critical statutory guideline.

The Agency’s Justification and Assessment of Potential Harms

Moreover, the Departments’ assessment of the situation confronting them was completely ignored by the Court.  The Court did so by faulting the Departments for not producing proposals sooner, in time to allow for notice and comment. It assumed that the Departments were not simultaneously working on the four sets of implementing regulations that had to be completed within the one-year timeframe. Texas Medical Assn, supra, slip op. at 25 (“[b]ut the Departments nowhere explain why they could not have worked on both rules in tandem”). 

Even on the assumption that the agency worked on and completed the different parts of the implementing regulations seriatim, there is little basis for concluding that the first three parts of the implementing regulations could have been available much before late September, when the IDR interim rule was published.  So instead of having a first part of the regulations that could be prepared in time for notice and comment and a second and third that probably could not, the agency may have ended up with three sets of regulations for which there was insufficient time for notice and comment before the one-year time limit expired.  Working on all three parts simultaneously would not have sped up the combined task, unless that had made more resources available or unless some economy of effort could have resulted from working on all three simultaneously.  There is no indication that either of those two things were true.

Moreover, it seems sensible to for the Departments to be sure of the quality of the QPA, before finalizing rules establishing a QPA presumption and, more particularly, specifying the circumstances in which certified IDR entities should depart from the QPA.  The latter rules would obviously depend on any perceived deficiencies in the QPA.  While the Departments published interim rules specifying the methodology for calculating the QPA in July, Requirements Related to Surprise Billing: Part I, 86 Fed. Reg. 36888-36894 (July 13), they sought comments on “all aspects of the methodology established in these interim final rules for determining the QPA.” Id. at 36888-89.  Those comments were due by September 7, 2021. 

It would hardly make sense for the Departments to finalize, promulgate, and release for comment rules for departures from the QPA before receiving and examining at least preliminarily comments received on the deficiencies, if any, in the interim regulations regarding the methodology for calculating the QPA.  In just one month after the deadline for comments on the QPA methodology had expired, the Departments promulgated regulations regarding the use of the QPA in resolving disputes over reimbursement rates.  This seems an eminently reasonable approach, one which minimized the possibility of having to promulgate two different sets of IDR process rules (one before the Departments became aware of any deficiencies in their methodology for calculating the QPA, and a revised one after).

The agency’s reasoning for the immediate need of regulations was also quite reasonable, and was really never even considered by the District Court.  The Department did not merely desire to provide some certainty to the parties simply to give them extra comfort.  The lack of certainty would have consequences – it would result in unfairness to providers and facilities in terms of under-compensation, risk leaving patients without access to needed out-of-network facilities and providers, and possibly exacerbate anti-competitive consolidation within the health care industry.  86 Fed. Reg. at 56043-44. Failure to promulgate even interim regulations immediately would, in the Departments’ estimation, also undermine the effort to ensure that providers could give patients “good faith” estimates as to the cost of services.  Id. at 56044.  In fact, the Departments acted on that concern, suspending the obligation to provide “good faith” estimates until they could finalize the proposed rules regarding the critical IDR process. Id. at 56044, n.99.  The District Court found none of these concerns irrelevant or unfounded, and certainly did not explain why the Departments’ concerns were unwarranted.  Instead, it simply ignored those concerns.

Is Soliciting Comments For an Interim Final Rule a Bad Thing?

The District Court held that inviting comment while promulgating interim final rules actually undercut the Departments’ case for invoking the “good cause” exception.  In U.S. v. Johnson, involving the Attorney General’s SORNA regulations, the Fifth Circuit had asserted that “the goal of reducing uncertainty is undercut by the request for post-promulgation comments, which could have resulted in a rule change. ‘[T]he possibility of an alteration to the interim rule after its promulgation increases rather than eliminates uncertainty.’”  This observation might have been unique to SORNA, in which the Attorney General promulgated a regulation to codify his interpretation that the SORNA statute itself required registration by pre-SORNA sexual offenders, solely for the purpose of forestalling further litigation regarding that very question.

In any event, the District Court interpreted the statement as applying beyond the SORNA context, asserting: “engaging in this post-promulgation process undercuts the claimed need for certainty since there is a chance the Rule could still change.”  Slip. op. at 27.  Though the Court limited its assertion to “this post-promulgation process,” one can easily infer a broader principle, namely that the willingness to entertain comments and modify interim regulations as a result undercuts the agency’s invocation of the “good cause” exception.  Should soliciting comments weaken an agency’s case for invoking the “good cause” exception?

Though interim final rules can be promulgated without also inviting notice and comment, the Administrative Conference of the United States (“ACUS”) has long urged agencies using the interim final rules option to accord stakeholders and the public the opportunity to offer post-promulgation comments.  Procedures for Noncontroversial and Expedited Rulemaking (adopted June 15, 1995)(Recommendation II).  So strong was its recommendation, that ACUS urged the President to impose such a requirement by executive order if agencies failed to adopt the practice.  In proceeding as they did, the Departments followed the recommended practice.

Two points should be made in assessing whether providing an opportunity for post-promulgation comments should weaken an agency’s case for relying on section 553’s “good cause” exception.  First, agency adoption of such a practice does not necessarily undermine stakeholders’ reliance interest in the interim rule subject to revision after public comment.  Second, the District Court’s approach creates perverse incentives, encouraging agencies to fit rules within other exemptions from notice and comment requirements and discouraging agencies from seeking public comment even if rules are not exempted but could otherwise be justified under the “good cause” exception.

Agency willingness to modify an interim rule in response to post-promulgation comments does not necessarily fatally undermine stakeholders’ abilities to rely on the interim rule to a significant extent.  It is entirely reasonable for regulated entities to believe that regulators will factor in reliance interests in deciding whether and how to change interim rule.  The agency could decide on the margins that it would not make minor changes, which, ceteris parabis, it might have adopted had it been aware of particular comments before promulgating the interim rule.  Or, in making changes to the interim rules, the Departments might give the regulated entities additional time to adjust to the new rules, to take into account regulated entities’ creation of systems and protocols in reliance on the interim rules.  And, of course, some changes might actually relieve regulated entities of obligations in a way that does not prejudice the class of individuals protected by the regulations, by removing requirements that in fact serve little purpose.  So the fact that an agency will accept and seriously consider comments need not fatally undermine stakeholders’ ability to rely on the regulations.

If any agency must promulgate an interim rule to meet a statutory deadline, particularly when the failure to act will have significant consequences, the agency could choose among at least three options: (1) finding an exception to the notice and comment requirement, which would allow it to proceed immediately, (2) promulgating the interim rule without an accompanying opportunity for post-promulgation comment, or (3) promulgating the interim rule while providing an opportunity for post-promulgation comment.  The latter would be preferable, allowing the agency to meet the statutory deadline while also giving stakeholders and the public and opportunity to offer comments and suggestions for modifications.  However, the District Court approach incentivizes agencies to choose the first or second options.

If an agency needs to expeditiously promulgate a regulation to meet a statutory deadline, it can avoid notice and comment altogether by seeking to shoehorn the rule into an exception to the notice and comment requirements.  Exceptions apply for rules relating to “military or foreign affairs function[s]”, to “agency management or personnel,” to “public property, loans, grants, benefits, or contracts,” and to “rules of agency organization, procedure, or practice.”  5 U.S.C. §553(a) & (b)(A).  It is not clear that courts should encourage agencies to shoehorn rules into these exception to meet a statutory deadline.  And it certainly makes no sense to do so in the name of encouraging deliberation.[15]

If the agency cannot avoid notice and comment because its rule does not fit one of the exemptions set forth above, but believes it has “good cause” for avoiding pre-promulgation notice and comment, it is better off promulgating an interim rule without providing notice and comment.  Under the District Court’s approach, providing for post-promulgation notice and comment actually undermines the agency’s “good cause” argument.  That is certainly a perverse incentive if one values providing stakeholders and the public with an opportunity to comment.

Finally, the Departments could have sought comments that would be due before the deadline.  But the Departments would have received the last comments little more than 20 days before the December 27, 2021 statutory deadline.  Having to assess and respond to comments by revising the rules in such a short span of time would surely not have encouraged deliberation and a full consideration of the options for modifying the rules to address concerns raised in the comments.  Indeed, the earlier course for the agency would be to devote time to crafting explanations for why the concerns raised were not important or did not require any change in the proposed rule. Requiring the agency to respond to comments on a complex rule in a short period undermines the effectiveness of soliciting comment in the first place.  In the context of a tight deadline, as opposed to situations in which there is no deadline, promulgation of interim rules followed by a post-promulgation “comment” period may well greatly enhance the agency’s receptivity to and fulsome consideration of stakeholder and public comment.

In short, given the need for three Departments to coordinate to produce a large set of implementing regulations during the first year of a presidential administration, the Departments should not be faulted for failing to complete the proposed regulations in time for full notice and comment.  Moreover, the reasons the Departments offered for their conclusion that providing a comment period was impractical and not in the public interest were sound, and the District Court failed in its duty to assess the proffered justifications’ reasonableness. 


The Court’s decision in Texas Medical Association is important in its own right; the standards to be applied in the IDR process in resolving disputes between insurers and providers/facilities are important.  Expeditiously resolving those questions is similarly important.

But the District Court’s resolution of the challenge to the IDR process rules raises broader implications for administrative law, as I have explored in this series of posts.

How will the other courts faced with similar challenges to the No Surprises Act IDR regulations resolve these issues? Will the courts of appeal resolve them consistency? Or will the Supreme Court be called upon to resolve these issues?

Stay tuned for more to come.

[1] Of course, for our purposes the study’s combination judicially-mandated and statutorily-mandated deadlines complicates matters.

[2] The D.C., Third, Fifth, Eighth, and Ninth Circuits rejected the invocation of the “good cause” exception, U.S. Steel Corp. v. EPA, 649 F.2d 572, 575 (8th Cir. 1981); W. Oil & Gas Ass’n v. U.S. EPA, 633 F.2d 803, 812 (9th Cir. 1980); New Jersey v. U.S. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980); U.S. Steel Corp. v. U.S. EPA, 595 F.2d 207, 214 (5th Cir. 1979), cert. denied, 444 U.S. 1035 (1980); Sharon Steel Corp. v. EPA, 597 F.2d 377, 379 (3d Cir. 1979).  The Sixth and Seventh Circuits upheld the invocation of the “good cause” exception, Republic Steel Corp. v. Costle, 621 F.2d 797, 803 (6th Cir. 1980); U.S. Steel Corp. v. U.S. EPA, 605 F.2d 283, 286-90 (7th Cir. 1979).

[3] The Fourth and Eleventh Circuits accepted the Attorney General’s invocation of the “good cause” exception, United States v. Gould, 568 F.3d 459, 469–70 (4th Cir. 2009); and United States v. Dean, 604 F.3d 1275, 1278–82 (11th Cir. 2010). The Third, Fifth, Sixth, Eighth, and Ninth Circuits rejected it, United States v. Reynolds, 710 F.3d 498, 509-14 (3d Cir. 2013); United States v. Johnson, 632 F.3d 912, 928 (5th Cir. 2011); United States v. Cain, 583 F.3d 408, 419–24 (6th Cir. 2009); United States v. Brewer, 766 F.3d 844, 887-90 (8th Cir. 2014); United States v. Valverde, 628 F.3d 1159, 1166–69 (9th Cir. 2010).

[4] Office of the Attorney General, Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8894, 8896 (Feb. 28, 2007). As the Attorney General explained:

“The purpose of this interim rule is not to address the full range of matters that are within the Attorney General’s authority under section 113(d), much less to carry out the direction to the Attorney General in section 112(b) to issue guidelines and regulations to interpret and implement SORNA as a whole. . . . The current rulemaking serves the narrower, immediately necessary purpose of foreclosing any dispute as to whether SORNA is applicable where the conviction for the predicate sex offense occurred prior to the enactment of SORNA.”).

[5] The No Surprises Act was adopted during a “lame duck” session.  Traditionally, lame duck sessions in presidential election years have produced relatively little legislation.  Congressional Research Service, Lame Duck Sessions of Congress, 1935-2018 (74th-115th Congresses) 13-26 (Updated October 13, 2020). 

[6] Compounding the complexity of the transition period, control of the Senate was not determine until January 5, when election victories in Georgia gave the Democrats fifty seats in the Senate, meaning that the Democratic Vice President could break ties to allow Democrats to prevail in party-line votes.

[7] See, Anne Joseph O’Connell, Political Cycles of Rulemaking: An Empirical Portrait Of The Modern Administrative State, 94 VA. L. REV. 889, 923, 946 (2008)(“rather than capitalizing quickly on their electoral mandates, Presidents generally started fewer, not more, rules in the first year of their terms than in later years”). 

[8]  Jack M. Beermann & William P. Marshall, The Constitutional Law of Presidential Transitions, 84 N.C. L. REV.. 1253, 1253, 1285-89 (2006).

[9] See generally, The Constitutional Law of Presidential Transitions, supra, 84 N.C. L. REV. at 1253, 1262-67.

[10]  The authors note that “[r]eviewing and assessing last minute rules . . . require[s] . . . new administration[s] to spend significant resources addressing the work left by the old administration rather than applying those same resources to learn and master the business of government.” Id. at 1286. And, they note, if the new administration disagrees with a rule promulgated in the previous administration, it will need to repeal or amend the rule, or let it remain in effect despite its distaste for the rule.  Id.

[11] Lisa Gomez was not nominated for Employee Benefits Security Administration until July 2021, and only finally confirmed in early 2022. (See here.)

[12] Accord, Deadlines in Administrative Law, supra, 126 U. PA. L. REV. at 945–49, 989.

[13] See, Will Feuer & Nate Ratner, U.S. Reports Record Number Of COVID Deaths In January As New Strains Threaten Progress, CNBC (Jan. 27, 2021); Bradley Jones, The Changing Political Geography of COVID-19 Over the Last Two Years (Pew Research Center March 3, 2022).

[14] In Johnson, the Fifth Circuit observed: “Moreover, Congress could have expressly waived the APA procedural requirements in SORNA if it feared those requirements would produce significant harm or excessive delay. Congress balanced the costs and benefits of an immediately effective rule against a more deliberate rulemaking process, and it favored the latter.”

[15] The Gerson & O’Connell study suggests that deadlines reduce the opportunities agencies provide for comment on significant rules. Deadlines in Administrative Law, supra, 126 U. PA. L. REV. at 944-45; see, id. at 933 (discussing potential adverse effects of statutory deadline upon deliberation in general).

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