Can a President Amend Regulations by Executive Order?

Does the President have the authority to unilaterally amend the Code of Federal Regulations by executive order?

The question arises because executive order 13843 issued by President Trump on July 10 to modify the way administrative law judges are appointed also purports to directly amend three provisions of the CFR.

Ordinarily, such regulations can only be amended by a formal rulemaking procedure involving public notice and an opportunity for public comment. That was not done here.

So a new publication from the Congressional Research Service inquires into the scope of presidential authority to amend federal regulations.

The tentative CRS conclusion is that while an executive order may itself be exempt from the regular rulemaking procedures, any agency implementation of the president’s executive order that involves changes to federal regulations would still have to follow those notice and comment procedures. See Can a President Amend Regulations by Executive Order?, CRS Legal Sidebar, July 18, 2018.

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Federal agencies disburse more than $100 billion each year in “improper payments” — meaning payments that should not have been made, payments for goods or services that were not received, payments in the wrong amount, duplicate payments, and so on. Efforts to reduce such unjustified expenditures have not been successful. A new report from the Congressional Research Service reviews the trends, and finds that “Over the period of FY2004 through FY2017… improper payments have totaled $1.3 trillion.” See Improper Payments in High-Priority Programs: In Brief, July 16, 2018.

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Other notable new or updated reports from the Congressional Research Service include the following.

Public Disclosure of Corporate Tax Returns, CRS Insight, July 16, 2018 (“Granting access to corporate tax returns could help to educate the public and inform policymakers by showing what corporations pay in taxes and which tax incentives they benefit from.”)

Brett M. Kavanaugh: Selected Primary Material, CRS Legal Sidebar, July 17, 2018

The Proposed Equal Rights Amendment: Contemporary Ratification Issues, updated July 18, 2018

The Black Lung Program, the Black Lung Disability Trust Fund, and the Excise Tax on Coal: Background and Policy Options, July 18, 2018

Military Commission Judges Do Not Have Unilateral Power to Punish for Contempt, CRS Legal Sidebar, July 18, 2018

The Budget Control Act and the Defense Budget: Frequently Asked Questions, updated July 13, 2018

Cybersecurity: Data, Statistics, and Glossaries, updated July 16, 2018

The U.S. Trade Deficit: An Overview, CRS In Focus, July 18, 2018

Mexico’s 2018 Elections: Results and Potential Implications, CRS In Focus, July 17, 2018

China’s Actions in South and East China Seas: Implications for U.S. Interests–Background and Issues for Congress, updated July 17, 2018

U.S. Army’s Initial Maneuver, Short-Range Air Defense (IM-SHORAD) System, CRS Insight, July 18, 2018