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There’s an Arizona twist to state agency rulemaking that I’ve never quite understood.

Both the Brewer & Ducey administrations put handcuffs on agency directors when it comes to rulemaking. Each issued Executive Orders saying that agencies even start on a new rule unless they went through a cumbersome review process and got approval from the governor’s office. A nearly impossible feat.

Brewer’s moratorium had an odd but predictable effect: it largely locked in the agency rules adopted during the Napolitano administration. Napolitano’s agencies had been prolific rulemakers, and their rules remained in effect throughout the Brewer Administration.

Then Ducey continued the same approach for another 8 years.

So, in an effort to stop agencies from adopting new regulations, two Republican administrations effectively preserved a whole bunch of Napolitano-era rules at agencies like the ADEQ, ADHS, ADES, ADWR etc.

As a result, Napolitano’s rules governing air, water and waste, health, resource management are largely still intact even though she abandoned her post almost 20 years ago. 

Ducey’s hostility toward agency rulemaking turned out to be good for public health and the environment. If he had pursued rules, his agency directors would have undoubtedly weakened protections across the board.

I’ve never understood Brewer and Ducey’s strategy.

If I was governor, I’d take a lesson from Napolitano. I’d tell my agency directors to hire good policy people, find outdated regulations, and use my existing statutory authority to use agency rulemakings to lock in my priorities for the long haul.

When I was ADHS director, we were able to get several major rulemakings completed, but most were specifically required by statute. Medical marijuana was the obvious example. We also overhauled the regulations governing assisted living centers, skilled nursing facilities and behavioral health facilities.

To get that overhaul done, we worked with stakeholders to pass a bill directing ADHS to rewrite the rules. Governor Brewer signed it. In other words, we needed a statute requiring the agency to regulate before the agency could get through the barriers to rulemaking.

Rules have way more staying power and when subsequent governors are hostile to changing their predecessors agency rules they do themselves a disservice… but that turned out OK for state public health – at least in Arizona.

Kennedy, the president & Congress have made plenty of decisions that are damaging to public health over the last 1.6 years. Some reduce access to healthcare. Others weaken environmental protections, end important research or replace evidence-based decisions with political ideology.

But not all bad policies are equally durable. One way to assess the long-term risk (or benefits) of the actions that they’ve taken is to look at which approach they took.

Did they actually change law? Did they not change law, but alter official agency regulations? Or, did they just issue an executive order?

Federal policy changes fall into 3 main categories: 1) laws passed by Congress; 2) regulations adopted by federal agencies; and 3) executive orders issued by the president.

This Week’s Exhibit: Low Durability Executive Orders

This week the White House released a new government-wide policy implementing an executive order the president signed in May 2025. The policy changes how federal agencies review and fund certain life-sciences research proposals.

It deals largely with what they call “dangerous gain-of-function,” or DGOF, research. That basically means research that might make a biological agent more dangerous… for example, by increasing its ability to spread, resist treatment, evade a vaccine or infect a new species.

Under the new policy (again – just an executive order), the HHS agencies aren’t supposed to fund research that meets its (nebulous) DGOF definition. Research that might potentially cross that line must undergo additional risk-benefit reviews by the researcher, the research institution, the federal funding agency and a new government-wide review body.

USG-Policy-for-Stopping-High-Risk-Life-Sciences-Research_July-2026

I’m not going to pass judgment on the EO from last week in this blog (much will depend on how it’s implemented)… mostly I’m using it as an example of a non-durable policy change.

It isn’t a law passed by Congress. It isn’t a regulation placed in the Code of Federal Regulations. It’s an executive-branch policy established through an executive order.

That makes it the least durable policy change – because a new president can come in and rescind the EO and it goes away at once (although federal agencies would of course need time to change their internal policies).

The Middle: Federal Regulations

So executive orders are the least durable policy changes. The next rung is formal agency rulemaking.

Congress often passes broad laws and directs agencies like HHS, CMS or EPA to fill in the details. Agencies do that through regulations, usually by publishing a proposed rule, accepting public comments and eventually issuing a final rule that becomes part of the Code of Federal Regulations—the CFR.

That process can take months or even years and is subject to federal government wide administrative policy laws.

The administration is using this process aggressively. OMB, for example, has proposed rewriting federal grant regulations to give political appointees more power over which grants are awarded or canceled.

AzPHA submitted comments opposing that proposal. EPA also has several rulemakings underway that would weaken environmental and public health protections.

Action Alert: Federal Government Planning to Implement Political Litmus Tests for Federal Grants Across All Health Agencies

A future administration can reverse those rules but changing them takes months or years. The agency has to conduct another rulemaking, accept comments, build an administrative record and defend its decision in court.

Most Durable: Laws Passed by Congress

The hardest policies to reverse are statutes.

When Congress passes a bill and the president signs it, the requirements become federal law. A future president can’t simply sign an executive order and make that law disappear. Congress needs to pass another bill changing or repealing it.

The new federal Medicaid work requirement is an example. Because Congress placed it in federal law, a future president couldn’t end the requirement alone. An administration might have some flexibility over implementation but repealing it would require Congress to act.

That’s why harmful statutory changes present the greatest long-term public health risk. They can continue causing damage long after the president, cabinet secretaries and political appointees who promoted them are gone.

Summary

Executive orders can cause immediate disruption, but they’re relatively easy to reverse. Rule changes can be pretty durable – but they take months or years to complete and reversing them also will take a lot of time. Statutory changes are super durable – because it takes an act of congress (and the president’s signature) to reverse the law.

When we evaluate this administration’s harmful public health actions keep in mind that some are long-lasting (Medicaid eligibility changes), some are changeable with some elbow grease and time (e.g. EPA changes to loosen air quality standards), and some can be gone like a flash when there’s a new president (Executive Orders).