The White House is upending decades of protocol for policy-making

Whether it’s overhauling asylum procedures, adding a question about citizenship to the 2020 Census, or rolling back fuel standards, a pattern has emerged when the Trump administration changes policies and creates new ones.

An announcement is made, media attention follows, the policy is formally proposed and finalized – generating more news coverage along the way. In many cases, judges suspend the new policy as lawsuits work their way through the system. Unusually, the Supreme Court often ends up determining whether the new policy can go into effect.

All presidents since the 1960s have embraced a process known as policy analysis that requires careful consideration and deliberation at every step of the way. In most cases, the public also gets to weigh in before a final decision is made. Based on my research about regulatory decision-making, I’ve observed a sea change in how Trump’s team is dealing with public policy compared to previous administrations.

Administrative Procedure Act

For the first 150 years of this country’s history, Congress, not presidents, decided on policies by enacting laws. 

Starting around 1900, lawmakers began to delegate this task to independent agencies, such as the Securities and Exchange Commission, and to government agencies under the president’s control. The pace of this shift stepped up during the New Deal, three decades later.

But because this arrangement can empower unelected bureaucrats, questions about accountability arose. Chief among them: Could decisions made by unelected officials that affected millions of people be allowed in a democracy? Requiring public participation and systematic analysis became routine and required for most policy changes as a result.

The mandate for public participation came first.

In 1946, Congress passed the Administrative Procedure Act. It established rulemaking procedures that required agencies creating new policies to alert the public, seek comments, and then consider that input before making most policies final. Many states followed suit with their own versions of this measure.