Great news, as far as it goes. And that’s the question that will endear the Trump administration to federal judges around the country when Russ Vought unleashes this new legal strategy. Or perhaps more accurately, it will make trial lawyers in the regulatory sphere wealthy … as far as this goes.
The New York Times reports on a new and “novel legal strategy” that the Office of Management and Budget director will soon deploy. Rather than go through months of process for repealing regulations — required under the Administrative Procedure Act (APA) — the White House plans to treat a massive amount of regulation as legally moot in light of Supreme Court precedents. Using the US DOGE Service to target such regulations, the administration will simply delete them from the federal register:
The specifics of the new approach coalesced in the days after the election, when Mr. Musk teamed with Vivek Ramaswamy, the Trump ally who co-founded the Department of Government Efficiency. As Mr. Musk pushed the DOGE team to quickly fire workers and eliminate government offices, Mr. Ramaswamy mapped out a more detailed plan to use a pair of recent Supreme Court rulings to seek out old regulations that, under the new decisions, could now be legally vulnerable.
One of those rulings, in 2022, limited the Environmental Protection Agency’s ability to regulate carbon emissions from power plants. The other, in 2024, ended a precedent known as Chevron deference in which federal agencies were given wide legal latitude to interpret laws.
Together, the Supreme Court’s actions served to limit the broad regulatory authority of federal agencies, and Mr. Ramaswamy asserted that they could justify permanently erasing many rules that had been granted before those precedents.
The mission has gained steam since the inauguration under the direction of Mr. Vought, who took over the planning after Mr. Ramaswamy left the Department of Government Efficiency to run for Ohio governor.
Trump set the ball rolling last week, in an executive order that may have flown under the radar. The title certainly addressed the intent clearly: “Directing the Repeal of Unlawful Regulations.” It ordered regulatory heads to repeal regulations mooted by ten Supreme Court decisions between 2015 and 2024, with Loper Bright at the very top of the list, and contains the core of the administration’s legal argument:
This review-and-repeal effort shall prioritize, in particular, evaluating each existing regulation’s lawfulness under the following United States Supreme Court decisions:
- Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024);
- West Virginia v. EPA, 597 U.S. 697 (2022);
- SEC v. Jarkesy, 603 U.S. 109 (2024);
- Michigan v. EPA, 576 U.S. 743 (2015);
- Sackett v. EPA, 598 U.S. 651 (2023);
- Ohio v. EPA, 603 U.S. 279 (2024);
- Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021);
- Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023);
- Carson v. Makin, 596 U.S. 767 (2022); and
- Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020).
In effectuating repeals of facially unlawful regulations, agency heads shall finalize rules without notice and comment, where doing so is consistent with the “good cause” exception in the Administrative Procedure Act. That exception allows agencies to dispense with notice-and-comment rulemaking when that process would be “impracticable, unnecessary, or contrary to the public interest.” Retaining and enforcing facially unlawful regulations is clearly contrary to the public interest. Furthermore, notice-and-comment proceedings are “unnecessary” where repeal is required as a matter of law to ensure consistency with a ruling of the United States Supreme Court. Agencies thus have ample cause and the legal authority to immediately repeal unlawful regulations.
That is what prompted the FCC to issue a “DELETE DELETE DELETE” e-mail to unleash this deregulation effort, and it’s certainly an interesting legal argument. Will it work? We’ll find out soon enough, but some skepticism is warranted here. However, don’t completely discount it either, as the judiciary may find it difficult to stop.
First off, there truly is a “good cause” exception to requirements for comments and challenges in rulemaking (and repeals of rules follow the same procedure), and “unnecessary” is a category of exemption. According to a draft report last October from the Administrative Conference of the United States, the exceptions are usually invoked in emergencies — even the “unnecessary” category. Even without an emergency, though, the rule changes where exemptions are claimed are minor:
According to the Attorney General’s Manual the APA’s reference to “‘[u]nnecessary’ refers to the issuance of a minor rule in which the public is not particularly interested.” Attorney General’s Manual at 31. As one court explained, the unnecessary prong is “confined to those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.”
Utility Solid Waste Activities Group v. E.P.A. is once again instructive here. The amended rule promulgated by the EPA was neither insignificant nor inconsequential. In fact, it “greatly expanded the regulated community and increased the regulatory burden.” 236 F.3d at 755. Accordingly, the court found that advance notice-and-comment was necessary before promulgating this rule.
The Trump administration doesn’t want to just get rid of “inconsequential” rules and regulations. The point of this effort is to alleviate the very consequential burden of regulations they insist are impeding commerce and industry not just unfairly but outright illegally. The administration may argue, however, that they are prohibited by the above precedents from enforcing these regulations, and that therefore the overall effect will be “inconsequential.”
So who gets to judge exemption claims, administratively? Well, that’s an interesting question:
If legislation is not an option, then the President could sign an Executive Order that sets out requirements for agencies to follow when invoking the good cause exemption.50 Executive Orders could prove quite durable as, for example, with Executive Order 12866,51 which sets out requirements for agency rulemaking. On the other hand, if the policy laid out in the Order proves controversial; if, for example, the Order is viewed as limiting the use of the good cause exemption, a subsequent Administration could simply repeal the Order or issue its own. Moreover, the President’s ability to enforce an executive order largely depends on the ability to remove executive branch officers. But since the President cannot remove the heads of independent regulatory agencies, agencies like the Federal Communications Commission and the Federal Energy Regulatory Commission, might simply choose to ignore the Order.52 That said, all government agencies, whether executive or independent, might welcome guidance offered through an Executive Order on the use of the good cause exemption.
The report also suggests that the Office of Information and Regulatory Affairs (OIRA) might pass judgment on exemption claims. Of course, OIRA operates within the OMB, reporting to Vought himself. The combination of both this EO as well as Vought’s control of OIRA may make this process difficult to challenge — especially since Trump has more or less eliminated the idea of “independent” agencies wielding executive authority. (The Supreme Court has yet to validate that.)
Difficult is not impossible, of course, and anyone with cash and a lawyer can file suit against such efforts. Courts are particularly deferential to the APA too, tripping up administrations of both parties that attempt short cuts on regulatory action. Any district-court judge that dislikes the Trump administration will throw sand in the gears of these changes, assuming plaintiffs can show standing to press a lawsuit at all. It will almost certainly take the Supreme Court to disentangle the APA exemption use in the end.
Could Trump and Vought win that fight? Maybe, but one has to wonder whether it would be quicker in the end to just conduct the comment periods and then make the changes under the normal processes of the APA. It could be that Trump wants this legal fight to keep courts from interfering in his regulatory efforts, but it might end up risk getting these changes done in time to derive the benefit from them … again. At the very least, it will be fascinating to see this “novel legal strategy” play out.
The latest episode of The Ed Morrissey Show podcast is now up! Today’s show features:
- The Now It Can Be Told Genre of Journalism: What’s worse — hiding the truth of Joe Biden’s incompetence or claiming virtue in revealing it now?
- Andrew Malcolm and I discuss the latest literary genre in politics and the continuing collapse in media credibility. Speaking of which, we both discuss the terrorist fangirling of Taylor Lorenz and the Left more generally.
- We also talk about the tariff debate and China’s recent zone-flooding on the global markets.
The Ed Morrissey Show is now a fully downloadable and streamable show at Spotify, Apple Podcasts, the TEMS Podcast YouTube channel, and on Rumble and our own in-house portal at the #TEMS page!
