Can a President Amend Regulations by Executive Order?

"An executive order signed by President Trump on July 10, 2018, raises the question of whether a President—with the stroke of a pen—can amend federal rules codified in the Code of Federal Regulations (CFR). In Executive Order 13843, the President changed the hiring process for administrative law judges (ALJs), “excepting” them from the competitive service. Somewhat unusually, the order directly amends three provisions in the CFR, rather than directing an agency to amend the regulations. Generally, rules may only be amended through special procedures governed by the Administrative Procedure Act (APA). This process, known as notice-and-comment rulemaking, usually requires advance notice and a period for public comment on proposed rule amendments. As a result, Executive Order 13843 raises the question of whether the President, if otherwise vested with the authority to make rules, could bypass this normal process and directly amend the rule by executive order. Supreme Court precedent suggests that presidential actions, such as executive orders, are not reviewable under the APA. But the APA’s procedural requirements still apply to agencies when they act to implement any presidential directives, raising the question of when presidential action ends and when agency implementation begins. This Sidebar explores the scope of the presidential exception to the normal rulemaking process.

When an agency engages in “rule making,” defined as formulating, amending, or repealing a “rule,” the APA generally requires the agency to follow certain procedures. Unless a rule falls within one of the statutory exceptions, the agency is required to undertake notice-and-comment rulemaking. (For an overview of notice-and-comment rulemaking procedures, see these two CRS Reports.) An agency has to comply with the APA not only when it initially promulgates a rule, but also when its actions constitute a substantive amendment to a rule falling within the APA rulemaking requirements..."
Executive Orders