Agency Rules Are Meant to Be Commented On

Photo by Tim Evanson

Manipulating its executive powers of rule making and rule enforcement, the Trump administration is carving away our rights on issues from healthcare to immigration. From the new domestic gag rule (that caused Planned Parenthood to exit Title X) to dismantling important parts of the anti-discrimination provision in the Affordable Care Act or denying green cards to immigrants who benefit from public assistance programs, President Trump is getting his way by twisting our laws.

Two weeks ago, the Department of Labor proposed a rule that would create a wide religious exemption for federal contractors, shielding companies and organizations that work with the federal government from claims of employment discrimination. A few terrifying aspects of this proposed rule are:

  • it expands which organizations and businesses can position themselves as religious, and therefore be covered, under the rule;
  • organizations can pick and choose how to discriminate; the discrimination doesn’t have to be consistent; and
  • the burden of proof shifts from the organization to the impacted employee.

In practice, this rule would allow companies to deny transgender employees benefits or access to restrooms, allow them to fire women who use birth control, and permit them to engage in additional egregiously discriminatory behaviors.

So, what can we do about it? Beyond protesting, calling for greater oversight from Congress, and taking these fights to the third branch of government through legal battles, citizens can also hold Trump to account through the under-utilized avenue of notice-and-comment periods.

When Congress makes a law or the executive branch identifies a problem that can’t be solved without regulatory intervention, agencies propose new regulations (also called rules). After a new rule is proposed, there is usually a notice-and-comment period that allows citizens to voice their opinion. Frequently, this period is required by federal law, and public comments are read and responded to by the proposing agency before the final version of the new rule can be issued and implemented. Importantly, agencies are required to address every unique fact-based comment in the written preamble of the final rule. If they fail to respond or if the response can be construed as “arbitrary and capricious,” the comment may be used to take the agency to court.

Public comments are a critical vehicle through which we can question the current executive branch’s dangerous execution of our laws.

So, how do you put together a strong comment? Comments tell the administration how their rules will adversely (or positively) impact real people. A statement that couples the personal with the evidentiary has the most impact. Introduce yourself and state how you (and also your family, your community, or another community) will be impacted by the proposed rule. Spend ten minutes or so researching the proposed rule to find some evidence that supports your argument, and you can also find templates prepared by vested organizations that you can customize. Cite evidence in your comment that comes from apolitical/nonpartisan sources. For example, data from Pew will be more compelling than data from a press release of an atheist organization. Lastly, if you are an expert or very familiar with the issue, address some of the following:

  • Is the regulation actually necessary? Is it being written because a new law requires it, or is it being written because the executive branch deems it necessary? Does the suggested problem actually exist?
  • Does the new regulation have greater benefits than costs?
  • Is there a more suitable alternative with greater benefits and fewer costs?

To find a proposed rule and submit a comment, visit regulations.gov. For more information on how to write a comment, check out this detailed primer. A good place for humanists to make their voices heard is in opposition to the Department of Labor’s proposed rule to allow religiously motivated discrimination by businesses and organizations that receive taxpayer dollars. The comment period ends September 16, so check out democracy in action at this link and add your voice.