New Presidential Rule Making

President Trump has greatly expanded the use of Executive Orders. Today, he published an executive order in the federal register (90 FR 17729-17733) that breaks new ground, even for this Administration. In EO 14284, Strengthening Probationary Periods in the Federal Service, Trump moves beyond the normal directing federal agencies to undertake rulemakings and attempts to directly change existing regulations.

The ‘rulemaking’ makes the following changes to 5 CFR Part 2:

Removes existing §2.4, Probationary Period, and

Adds a new Part 11, Probationary and Trial Periods (Rule XI).

According to §6 of the Executive Order these regulatory changes take effect today (except for §11.5 which takes effect in 90-days).

The details of this regulatory change are not of specific interest here (the regulatory intent is explained in §1). What is of concern here is the fact that this EO bypasses the regulatory process using the justification that existing regulations of concern “are not statutorily required”. This would seem to open the door to more direct regulatory actions by the Office of the President without going through the publication and comment process, or even the standard regulatory approval process within the OMB’s Office of Regulatory Affairs and Information (OIRA).

As with many of the Administration’s EO’s, I expect that this one will be challenged in the Courts.