When Normal Rulemaking Isn't Enough

The Trump administration is running two parallel deregulation tracks. One proceeds through the ordinary machinery of the Administrative Procedure Act — proposed rule eliminations, public comment periods, cost-benefit justifications. The other invokes national security to do what the APA cannot: waive statutes, override court orders, restructure treaty obligations, and deport lawful residents for their speech. In early July, the administration proposed eliminating 702 federal rules — on top of 752 already rolled back — the largest deregulatory campaign in American history, justified on economic grounds ^[1]. The White House called it the most aggressive regulatory reform in history.

The federal government has imposed onerous restrictions on everything from the cars that Americans may drive to the appliances that they can use in their homes. — Mark Paoletta

Months earlier, Defense Secretary Hegseth had taken a different route. He invoked national security to seek a blanket exemption from the Endangered Species Act for all Gulf of Mexico oil and gas drilling.

I found it necessary for reasons of national security to exempt from the (Endangered Species Act’s) requirements all Gulf of America oil and gas exploration and development activities — Pete Hegseth

The two moves are not contradictory. They reveal a functional division of labor. The APA can roll back rules — even hundreds of them — but it cannot waive a statute like the Endangered Species Act. It cannot override a court order striking down tariffs. It cannot restructure NATO's mutual-defense obligations or deport a green-card holder for political speech. National security is the tool reserved for exactly those junctures. The pattern is visible across every domain the administration touches. In environmental regulation, the administration has invoked national security to reach outcomes the normal administrative process cannot deliver — or at least cannot deliver quickly. Hegseth's Gulf-wide ESA waiver is the clearest example: no APA rulemaking can suspend a statute Congress enacted. The administration also invoked Section 303 of the Defense Production Act — a military-readiness authority — to accelerate fossil fuel production, with Trump stating that regulatory delays and market barriers prevent energy development essential to national defense ^[2]. The Department of Energy issued at least 74 emergency orders to block the planned shutdown of aging coal plants ^[3]. And the administration halted five major offshore wind projects, citing a classified Defense Department report claiming turbine blades interfere with radar ^[4]. A federal judge later ruled that the stated national security rationale may have been pretextual.

the stated national security reasoning may have been “pretextual,” to mask the true motives for stopping offshore wind. — Royce Lamberth

National security was the tool that could reach them — or at least could be invoked to try. In trade, the pattern is procedural. After courts struck down Trump's tariffs under the International Emergency Economic Powers Act, the administration cycled to Section 122 of the Trade Act. When a court struck those down too, it moved to Section 301 and Section 232 investigations ^[5][6]. The APA cannot override a court order. Cycling legal authorities — each carrying its own national-security hook — can keep tariffs alive while appeals run. In immigration, national security reaches where statutory protections block the normal process. Secretary of State Marco Rubio invoked "adverse foreign policy consequences" to justify detaining and seeking to deport Mahmoud Khalil, a lawful permanent resident and Palestinian activist ^[7]. Khalil, who has not been charged with a crime, described the logic plainly.

The government had deprived me of my liberty, not because I had broken any laws, but because it didn’t like what I had to say. — Mahmoud Khalil

A federal judge blocked a separate administration freeze on immigration benefits for 39 countries ^[8]. The court found that U.S. Citizenship and Immigration Services used national security as a cover.

USCIS's hold on adjudications cannot be attributed to anything that these individuals did wrong; rather, it arises solely by the happenstance of their birth. — T. J. McConnell

The Supreme Court, meanwhile, ruled in Mullin v. Al Otro Lado that border officers can use expedited removal for nearly anyone deemed inadmissible due to "national security concerns," imposing five-year reentry bars without a hearing ^[9]. The APA cannot deport a green-card holder for speech. National security can be invoked to try. In diplomacy, the administration has used national security to restructure treaty obligations and extract territorial concessions — things no administrative rulemaking can touch. Trump threatened to withdraw all U.S. troops from Europe if NATO allies refused to accede to his demands, calling the alliance a paper tiger after European allies declined to join the Iran campaign ^[10].

NATO WASN’T THERE WHEN WE NEEDED THEM, AND THEY WON’T BE THERE IF WE NEED THEM AGAIN. — Donald Trump

He proposed a "pay-to-play" restructuring that would strip Article 5 guarantees and strategic voting rights from nations not spending 5% of GDP on defense ^[11]. At a NATO summit, he demanded U.S. control of Greenland, framing it as an Arctic security imperative against Russian and Chinese influence ^[12]. Special Envoy Jeff Landry linked the Greenland push directly to oil production, arguing Greenland could export 2 million barrels a day to relieve pressure on the Strait of Hormuz ^[13]. The administration does not use national security for everything. Where the APA works, it uses the APA. The 702-rule rollback is the largest deregulatory campaign in American history, and it is proceeding through ordinary notice-and-comment rulemaking. When SpaceX wanted 715 acres of federal wildlife refuge in South Texas, the administration routed the transfer through the Fish and Wildlife Service, which issued a finding of no significant impact — a routine administrative determination, not a national-security order ^[14].

Rather than exercising its enforcement authority to protect the Refuge from SpaceX’s activities and to require mitigation to address the harm SpaceX has caused, the Service seeks to give SpaceX over 700 acres within the Refuge. — Center for Biological Diversity

The control cases confirm the pattern: normal process where it can deliver, national security where it cannot. Two federal judges have now named the pattern from the bench — one finding the administration used national security concerns as a pretext to mask prohibited anti-immigrant sentiments, another ruling the offshore wind rationale may have been pretextual. Trump himself described the method with a candor that leaves little to interpret.

Nothing surprises me, so we always do it a different way. We get one ruling, and we do it a different way. — Donald Trump