Reclaiming Notice and Comment

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here

Matthew Cortland and Karen Tani –

In June 2016, five months before the election of President Donald Trump, Senator Elizabeth Warren wrote a post for the Regulatory Review on “corporate capture of the regulatory process.” It highlighted myriad opportunities in the rulemaking process “for powerful industry groups to tilt the scales in their favor.” The “notice and comment” process offered a key example: “industry insiders and their highly-paid allies” produce “an avalanche of detailed, well-funded, well-credentialed comments,” Warren observed, which administrators must consider if the eventual rulemaking is to survive judicial review.

Fast forward three years, into an administration that has besieged the administrative state—questioning its legitimacy, demoralizing its personnel, slowing the pace of regulation, and  withdrawing from important regulatory realms. In this anti-regulatory moment, notice-and-comment might seem a quaint artifact from a bygone age: with such meager regulatory output, especially aimed at industry, what is left to comment on?  Instead, however, notice-and-comment has become a key tool of opponents of the current administration—a vehicle for mobilizing “grassroots experts” and enabling marginalized voices to speak against dehumanizing agency action.

The truth is that even a determined de-regulator cannot escape notice-and-comment. Under the Administrative Procedure Act, changing course sometimes requires that an agency solicit public comments, as with the Department of Education’s effort to delay a 2016 regulation targeting racial disparities in special education services and school discipline. More than 300 commenters weighed in, according to the New York Times, and “the overwhelming majority” raised concerns about how the status quo channeled black and brown students towards “the margins of society or . . .  prison.” The ED postponed the rule anyway, but a group of parent advocates promptly and successfully challenged the decision in court. (Informally issued guidance documents are easier to revoke—see the ED’s swift reversals of other Obama-era civil rights interpretations—but these represent only one layer of regulatory netting.)

Another policy area that the Trump administration has been keen to deregulate is healthcare—but notice-and-comment requirements are now attached to what had historically been a vital tool for releasing regulated entities (here, the states) from federal requirements: the Medicaid Section 1115 waiver. Thanks to one of the Affordable Care Act’s lesser-known provisions, the Department of Health and Human Services is subject to public scrutiny and challenge when it grants these waivers.

Savvy opponents of the current administration have pursued those openings, using strategies not unlike those that corporate lawyers employed for decades. Consider the grassroots fight against Medicaid work requirements, after HHS invited states to seek Section 1115 waivers for this purpose. One of us (Cortland) has made it a personal mission to flag these waiver requests and educate peers, allies, and social media followers on how to write and submit public comments, as well as what makes a comment effective. (Other organizations have created similar guides, for similar purposes. See, for example, “Notice and Comment 101,” by the prominent student advocacy and empowerment organization Know Your IX, or the how-to guide by the concerned scientists at the Public Comment Project.)

As for the end-game, there is no hiding the ball: “[N]o matter how brilliant your comment,” the Cortland guide notes, “Donald Trump isn’t going to stop attacking Medicaid. But we’re not trying to change his mind, or the mind of anyone who works for him. . . . We’re commenting because it will make a difference in court.” One need look no further than Stewart v. Azar, 313 F.Supp. 3d 237 (D.D.C. 2018), where Judge Boasberg vacated HHS’s approval of Kentucky’s 1115 waiver application; comments from concerned citizens were very much part of the record.

The importance of such comments goes beyond winning particular battles, however. One underappreciated value is their ability to mobilize communities of “grassroots experts.” In the Medicaid context, these would include counselors, home health aides, advocates, and so on—people who may not have a powerful professional organization behind them, but have deep, practical knowledge of this policy area. The act of commenting, especially when done in community with peers, claims and affirms this expertise.

A second value of these comments is that they create a public record—an archive—of the human toll of governmental choices. In response to Maine’s request for a 1115 waiver to implement work requirements (a change that would impose burdensome documentary requirements on even clearly eligible beneficiaries), a physician in Farmington told the story of a patient he was treating for opiate addiction: administrators terminated her MaineCare after they misplaced some documentation; unable to afford her medication, she relapsed and lost custody of her children. In another comment on the proposed Maine waiver, a former homeless shelter staffer described the “disaster” she witnessed when the food stamp program initiated a work requirement. She then referenced her own experience with chronic illness: “Sometimes you can work . . . ; sometimes you can’t. And when you can’t work it is when you need that health care the most and are least able to cope with DHHS’s bureaucracy. “I would just want to give up the struggle and die,” she wrote, if during a bad spell administrators cut off her healthcare for lack of workforce participation. In response to Kentucky’s request for a waiver (again, seeking to impose a work requirement), one commenter wrote about the measures people resorted to when they lost healthcare, such as “buy[ing] fish antibiotics from the pet store” or asking insured friends to share medication. Comments of this nature abound—describing unpredictable earnings, inaccessible public transportation, unaffordable child care, unavailable jobs; cataloguing the concrete realities of being so poor that you need Medicaid and the concrete burdens of making healthcare harder to get and keep.

Testimonies like these show that notice-and-comment is more than just a tool in the battle over the administrative state. It is also an opportunity for marginalized people—people whose voices are often diluted or excluded in the realm of formal electoral politics—to call out the power dynamics they see operating in the world and to name the casualties. Reading some of these comments, we could not help but think of Cameroonian philosopher Achille Mbembe’s concept of necropolitics, through which he has explained striking historical and contemporary examples of state violence— “weapons . . . deployed in the interest of maximum destruction of persons”; choices that confer upon certain populations “the status of living dead.” The comments on proposed Section 1115 waivers stop well short of describing “death worlds,” but they do remind us, as Mbembe does, that part of what makes a sovereign government sovereign is “the power and the capacity to dictate who may live and who must die.”

“If you make these changes, you will kill people,” wrote one commenter, in response to Kentucky’s requested waiver. “These changes will either kill us or ruin our quality of our already terrible lives,” wrote a commenter who identified as an Eastern Kentuckian. “Opioid epidemic, hep c, and now we won’t even have any sort of help other than running emergency room bills for bronchitis. . . . We are a statistic to you, and easier to kick off medicaid and let die and tell yourself you did something, because we won’t be visible anymore.” “You are killing the poor,” wrote a self-described “disabled woman who survives on SSI and the MaineCare program” and who had raised a chronically ill son. “When you take medication from people with cancer or epilepsy or diabetes,” explained another commenter on the proposed Maine waiver, “you are essentially exterminating them.” “You are sealing our fate to die earlier and live in more pain,” read a comment on Mississippi’s request for a 1115 waiver, from a writer who identified as having multiple sclerosis but not (yet) requiring disability benefits. Another commenter on Mississippi’s proposed waiver excerpted Dickens’ A Christmas Carol—the part where Ebenezer Scrooge equates poor people dying with a not-unwelcome “decrease [in] the surplus population.” A third Mississippi commenter wondered whether among the costs the agency considered were the costs to the “morality of a democratic state.”

The administrators viewing these comments might dismiss such language as hyperbole, or cast the authors as ill-informed and unsophisticated (as HHS did in defending its November 2018 approval of Kentucky’s waiver). They might counter anecdotes of hardship with references to the value of self-sufficiency and the need for public savings. But as we’ve seen in judicial challenges to HHS’s decisions, there is more than one audience for these comments. Comments that, to one decision maker, demonstrate ignorance might to another register as informed evidence of harmful consequences, inconsistent with the intentions of democratically elected representatives. (See, for example, Judge Boasberg’s decision in Stewart v. Azar II.)

And ultimately, the comments’ public nature will allow history to be the judge.

Matthew Cortland (@mattbc) is an attorney in Massachusetts, where his practice focuses on healthcare and disability rights. Karen Tani (@kmtani) is a Professor of Law at the University of California, Berkeley.