Mark Pestronk
Q: Over the past decade or so, the DOT has adopted a series of consumer-protection regulations, such as the full-price rule, the codeshare rule and, most recently, the rule requiring automatic refunds for cancellations. Near the end of the Biden administration, the DOT even signaled its intention to propose new rules requiring airlines to compensate delayed passengers by providing them with overnight lodging and meals. On taking office, President Trump issued an executive order requiring federal agencies to repeal 10 regulations for every one regulation that it adopts. Do you think that these consumer-protection rules will be repealed, and if so, how long will it take?
A: The Jan. 31 executive order doesn't exactly require repeal of regulations. Rather, it directs federal agencies to "identify" at least 10 existing rules, regulations or guidance documents to repeal whenever they seek to introduce a new rule or regulation. So at least theoretically, a federal agency doesn't have to repeal any regulations if it doesn't adopt any new ones.
However, on April 9, following an important new Supreme Court precedent holding that courts did not have to defer to federal agencies' expertise, the president issued a "memorandum" to heads of federal agencies called "Directing the Repeal of Unlawful Regulations." The order requires that federal agencies "immediately take steps to effectuate the repeal of any regulation, or the portion of any regulation, that clearly exceeds the agency's statutory authority or is otherwise unlawful."
Some conservative legal commentators have argued that all of the DOT's consumer-protection regulations exceed the DOT's legal authority. There is a substantial likelihood that the current secretary of transportation would agree with that proposition, especially if the airlines lobby hard for repeal.
Although a federal law called the Administrative Procedure Act (APA) requires public notice and a comment period before adopting or repealing any regulations, the April memorandum directs repeal without any public notice of a proposed repeal or opportunity for public comments. The directive relies on an exception in the APA stating that notice and comment can be dispensed with for "good cause."
The trouble is that there is a controversy over whether the "good cause" criterion applies here. Traditionally, the term has meant that the procedural steps could be dispensed with in emergencies, when there was no time to go through the steps, or that the regulation was no longer relevant.
Consumer-advocacy groups are expected to mount legal challenges over this issue. The question is certain to end up in the Supreme Court, which will probably side with the administration and issue its decision in June of next year. So, it will be a year until the president's immediate-repeal directive can take effect, and it will probably be another year until we know which regulations are in fact repealed.
In addition, federal agencies will try to follow the 10-to-1 directive, so you can anticipate that neither the DOT nor any other federal agency will adopt any new consumer-protection rules for travel under this administration.