Federal decisionmaking under the Trump administration has raised a host of procedural, scientific, and ethical concerns. Agencies have bypassed processes for public input, interfered with grant management, shuttered long-standing public data resources, and ignored well-established scientific findings when they contradicted policy aims, among other troubling occurrences.
The obvious and much needed response is to ask what reforms might help guard against future attacks on procedural and scientific integrity. But that effort should begin with the long-standing medical principle: first, do no harm. Poorly thought-through and designed reforms may not just be ineffective — they can ultimately prove counterproductive. This risk is demonstrated by the many cautionary examples of well-intentioned federal procedural requirements that in practice have tied up decisionmaking in red tape without meaningfully enhancing the process or outcomes.
As efforts to rebuild and reinforce good government move ahead, they should learn from these cautionary tales, develop recommendations that holistically consider how best to improve policymaking, and avoid addressing recent misconduct by reflexively creating new procedural hurdles or reinstituting past ones.
Cautionary Tales: Good Intentions That Have Yielded Red Tape
Government action necessarily involves navigating applicable procedural requirements. Some of these requirements provide real value by creating opportunities for public input, ensuring deliberative process, or otherwise supporting good government. Others may merely be delay mechanisms designed by opponents of the underlying action.
Regrettably, some are good faith efforts to strengthen decisionmaking that ultimately just slow it down and yield little benefit.
One poignant example of such a cautionary tale stems from the Clean Air Act. Section 307 of the Act requires that written comments from the White House and interagency reviewers during the final stages of review of a related rule under the statute must be made public in the rulemaking docket.
In theory, this requirement could help ferret out malign intervention from these reviews, which Executive Order 12,866 aims to restrict through explicit limits on external communication.
In practice, however, the primary impact is that written communication in these reviews is dramatically hampered. For example, comments on legal risks are typically conveyed orally, as government lawyers are understandably reluctant to publicly telegraph their concerns to legal opponents. The resulting process is time-consuming, diminishes the clarity of feedback provided, and can slow the overall pace of the review simply from the sheer challenge of scheduling meetings with the relevant staff members. In addition, only certain team members are sufficiently experienced to manage these reviews given the heightened process requirements, creating a staffing bottleneck. Meanwhile, the transparency value is minimal since many comments are orally conveyed. Moreover, the requirement does not protect against bad actors who seek to go outside the review process entirely.
This provision exemplifies how even discrete, seemingly minor requirements can impose significant costs — and may not yield any meaningful benefit. Reform efforts often propose comparable additional process requirements that in isolation seem minor, but ultimately would contribute to further ossifying government decisionmaking. For example, the Information Quality Assurance Act passed the House with broad bipartisan support in 2024. It would have required any agency to put into the docket any study cited in a rulemaking. Agencies must already explain and make public their reasoning and justification, so this requirement would have merely created the extra process step of requiring an agency to upload all the studies to regulations.gov, a not particularly user-friendly or accessible location. If an agency made an error in this tedious process, its entire rule could potentially be jeopardized. The bill never passed the Senate, but its bipartisan progress highlights how broadly supported, apparently well-intentioned reform efforts can in practice advance counterproductive decisionmaking hurdles.
The Paperwork Reduction Act (PRA) provides another example of a procedural protection whose flawed design and execution results in more costs than benefits. The PRA has a long list of laudatory aims including minimizing paperwork burdens from federal government information collection; ensuring the greatest possible public benefit from federal government information; and improving the quality and use of federal information; among others. The general goals of providing a chance for public input and guarding against federal government overreach in information collection are worthwhile and well-intended.
But, in practice, the PRA as currently implemented is a major impediment to agency science and public engagement. Among other issues, it requires multiple, sequential opportunities for public comment on nearly every agency form, causing significant delay while in practice receiving little to no engagement from the public. Despite its seeming obscurity, the PRA has become such a procedural challenge that is the subject of multiple pieces detailing concerns and suggesting reforms.
Nor has the PRA stopped the Trump administration from moving forward with recent demands like pressing universities to turn over detailed admissions data — approved after just three days of White House PRA review despite the evident tension with the law’s aims. Seventeen states have since sued to halt this collection. But even here the litigation does not rely on the PRA as a basis for challenge but rather claims violations of the Administrative Procedure Act, highlighting that the PRA does not offer strong protection against bad actors to counterbalance its burdens.
Questions for Reform Proposals
Reform efforts motivated to address recent misconduct should keep these cautionary tales front of mind and remember that poorly designed reforms may not just be ineffectual, but could even be detrimental. Seemingly discrete, manageable requirements can create significant burdens and may do little to guard against the original source of concern.
With these cautionary tales in mind, anyone proposed a new procedural requirement should ask four questions:
- What is the likelihood that this requirement would meaningfully improve overall outcomes, including preventing future misconduct from a bad actor?
- What is a realistic estimate of the burden on an agency to implement it?
- Does the potential value of this protection justify any additional burden and decisionmaking delay?
- Is there another option to achieve this aim, including any options that would instead eliminate or streamline procedural burdens?
This moment certainly calls for reform. But the policy response must be deliberate and avoid reflexive, shortsighted answers. And first, it must do no harm.
