No Further Comment: The Erosion of Public Comment in the EU and US

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Governments on both sides of the Atlantic have recently taken steps to limit opportunities for public comment during the policymaking process. Examples include the European Commission’s expedited procedures for developing legislative proposals and the Trump administration’s use of the Administrative Procedure Act’s (APA) “good cause” exception for rescinding regulations. To be sure, the public comment process is time and resource intensive, and at times may exhibit little benefit for participants and government officials. Public comment nevertheless remains a fundamental principle of good governance, facilitating the provision of information and the expression of preferences and, by extension, potentially enhancing procedural transparency, the quality of policy, and democratic legitimacy. In addition, public comment, along with other procedures such as regulatory impact analysis, can reduce policy instability and uncertainty and thereby facilitate investment, innovation, and economic growth, constituting fundamental procedural safeguards in regulatory policymaking. While the public comment process may be in need of sensible reform, some current efforts arguably go beyond constructive changes and threaten to fundamentally alter longstanding practices with well-established benefits.

The View from the EU

We begin our discussion with the case of the European Union, which in 2016, as part of a broad reform of its Better Regulation policy, significantly expanded its public participation procedures during the policy formulation stage of legislative and non-legislative acts. This allows citizens and interest organizations to provide inputs across different stages of the European Commission’s policy formulation processes. First, citizens and organizations have four weeks to provide public comments on roadmaps, inception impacts assessments that announce the start of the policy initiative, or on evaluations of broad public interest and fitness checks. Since 2021, this stage has been known as the “call for evidence” and constitutes the first entry point of public comments into supranational policymaking. Second, later on in the formulation process, citizens and organizations can participate for a period of 12 weeks in public consultations arranged with the help of online surveys. Third, once draft legislative proposals are adopted by the College of Commissioners and before they are sent to the European Parliament and the Council for legislative debate and adoption, they are posted online for another eight weeks of public comment. A post-formulation round of public commenting is also organized for non-legislative acts (i.e., draft delegated and implementing acts) for a period of four weeks. All initiatives with important societal and economic impact must adhere to these public participation procedures stipulated in the Better Regulation guidelines.

However, throughout 2025, the European Commission fast-tracked the formulation of a set of legislative proposals across different policy areas using the omnibus procedure that allows the European executive to speed up the development of policy proposals in the context of exceptional circumstances and emergency situations. While this procedure is included in the EU Better Regulation guidelines as a legitimate course of action under exceptional policy or political circumstances, it also entails significantly shorter and more succinct public consultation procedures. For example, for some omnibus legislative proposals, the Commission decided to scrap the usual 12-week online public consultation, and most proposals did not go through the ordinary four weeks of post-formulation public commenting. While across most proposals, the Commission did use calls for evidence on the initiatives and alternative means to engage and consult with stakeholders later down the policy formulation process, such as, for example, the organization of targeted online meetings known as “reality checks,” it is worth noting that some of these alternative means of engagement were generally less open and not easily accessible to individual citizens. This was especially the case for targeted online stakeholder meetings, which were predominantly attended by interest organizations. Which stakeholders participated in these meetings and fast-tracked policy formulation processes matters because the administrative simplification principle which partially justified the expedited adoption of the omnibus legislative packages has been criticized for leading in fact to instances of deregulation. A question thus remains about the extent to which the public interest was properly represented in these processes.

As another example, in January 2026, the European Commission invited public comments on a Call for Evidence regarding an initiative on Better Regulation, signaling that it wants to reform its Better Regulation policy. The stated aim of this initiative is to “enable evidence-based, swift and decisive EU action,” “make the consultation system smarter,” and apply “‘simplicity by design’ from the inception of new legislative proposals.” The initiative is justified in light of the “increasingly rapid pace of policymaking in a context of ever-changing and volatile geopolitical environment,” which requires the Commission to “be in a position to take swift and decisive action.” The contextualization of the initiative directly takes aim at the existing public consultation regime. This regime is described as facilitating stakeholder engagement “repeatedly through different channels,” which can “generate stakeholder fatigue and reduce the overall usefulness of inputs, as highlighted by the Letta report that suggests a ‘once-only’ approach to gathering essential information.” This leaves no doubt that the Commission intends to reform and streamline its stakeholder consultation and participation procedures by reducing their frequency and scope, and by rethinking their deployment and design as part of the formulation process of EU legislative proposals. In doing this, the Commission is likely to formalize the more ad-hoc, less predictable, and less formalized and institutionalized approach to the design and deployment of public participation procedures that it employed in 2025 in the omnibus packages of legislative proposals.

This reform can be expected to erode public participation opportunities in EU supranational policymaking, given that the European Commission has a formal monopoly over the right to initiate and formulate legislative proposals. It is possible, as a result, that fewer citizens will get involved and voice their policy demands directly in supranational regulatory policymaking. For the Commission, a downward-oriented restructuring of public participation procedures may reduce the perceived procedural legitimacy of its policy formulation processes, its success in legislative agenda-setting, and the initial positive reviews its public consultation procedures received from affected stakeholders. Reducing public participation opportunities may expedite the policy formulation process, but may come at the cost of significantly reducing the procedural and democratic legitimacy of the Commission’s policymaking.

Both the use of the omnibus procedure and the reform of the Better Regulation policy constitute prompt and legitimate European Commission responses to its political masters, the Member States of the European Union. Their meetings at the European Council in June and October 2025 concluded with explicit demands to the Commission to simplify EU legislation and accelerate EU policymaking to increase the competitiveness of the European economy. These demands echoed and reinforced ideas and principles of governance presented in the 2024  Draghi report on EU competitiveness and the 2024 Letta report on the EU single market. In this respect, the erosion of public participation procedures in EU supranational policymaking is a consequence of the Commission acting as a bureaucracy responsive both to its political masters (the EU Member States) and to policy recommendations made in public by experts commissioned to address the issue of the competitiveness of the EU economy. This also shows that a change in the political priorities of the EU can have significant consequences on the design and implementation of its system of supranational governance.

Policymaking in the US

In the US, meanwhile, the Trump administration has taken a variety of steps to limit public comment, with a similar eye to procedural efficiency and economic competitiveness while also reflecting distinct elements of the US separation of powers system. In one prominent step, President Trump instructed agencies—in an April 9, 2025 executive order—to dispense with public comment when repealing certain regulations. The administration’s justification is that recent Supreme Court rulings, notably Loper Bright Enterprises v. Raimondo, place strict limits on agency discretion in regulatory policymaking. Specifically, the executive order reasons that previously issued rules that conflict with new Supreme Court precedents are “facially unlawful,” “unnecessary,” and “contrary to the public interest.” By this logic, such regulations are eligible to be repealed without public comment under the APA’s “good cause” exception. The executive order, in other words, sacrifices procedural safeguards as a means of fast tracking the Trump administration’s deregulatory agenda.

As a second example, in a March 3, 2025 policy statement, the Department of Health and Human Services abolished a decades-long practice (known as the “Richardson Waiver”) of voluntarily seeking public comment for rules above and beyond the requirements of the APA. Under this procedural change, rules governing Medicaid benefits and grants issued by the National Institutes of Health can be revised or removed without public comment. Furthermore, new reductions in opportunities for public comment extend beyond health policy, notably to the preparation of certain environmental reviews that agencies across the government draft in support of energy, infrastructure, and other projects. Once again, the erosion of public comment is a procedural element of a broad strategy to streamline agency decision making and advance deregulation in the pursuit of economic competitiveness and other goals.

Research on regulatory policymaking in the US suggests that such fundamental changes could limit the benefits that public comment brings to governance and policymaking. Although public comment does not always measurably impact the content of policies, research demonstrates that submissions steeped in legal, economic, scientific, and technical information at times significantly shape government actions. In addition, public comment allows for democratic expression—through, for example, mass comment campaigns—in what are otherwise technocratic policymaking processes. Research indicates that such expression is normatively important, in that government officials are charged not only with making legal, administrative decisions but also with handing down value judgments that affect large numbers of lives and livelihoods. Finally, research has pointed out the harmful effects of policy whiplash, periodic drastic changes in laws and regulations that occur as governments with widely differing priorities alternate in power. Procedures such as public comment serve as antidotes to such polarization in the US by making it legally difficult for government officials to unilaterally present major policy reversals as faits accomplis. Put differently, the public comment process has the potential to enhance the durability of policy and, therefore, the certainty that is often associated with job creation and economic growth, goals central to President Trump’s professed agenda. Notably, concerns about durability apply equally to the EU, in that “its ability to project standards globally through the Brussels Effect – rests on the depth, stability, and predictability of its rules.”

Conclusion

In sum, this accounting and assessment of the erosion of public comment in the EU and US suggests a number of takeaway lessons. First, it is important to acknowledge that public comment as it is currently constituted in either the EU or US is not sacrosanct. The public comment process is in need of reform to respond to legal and political developments, as well as technical advances. Second, necessary reforms ought to be made with an eye toward preserving and extending the demonstrated benefits of public comment, rather than as a means to serve short-term political agendas. Although economic competitiveness is a valid goal of governments on both sides of the Atlantic, dramatic rollbacks of public comment processes may have the unintended consequence of dampening incentives for long-term investments and other drivers of growth. In the end, authorities in both the EU and US are best to avoid a rapid “race to the bottom” in public comment that research on both sides of the Atlantic suggests has the potential—if carried to the extreme—to harm policymaking and democracy.