Presidential Memorandum Calls for Scrutiny and Fast-Track Repeal of Regulations

President Trump issued a Memorandum on April 6 directing the heads of all executive departments and agencies to identify on a fast-track basis (60 days) certain categories of “unlawful and potentially unlawful” regulations and begin plans to repeal them. This review-and-repeal effort prioritizes the evaluation of the lawfulness of existing regulations in light of 10 recent U.S. Supreme Court decisions. The decisions are identified in the Memorandum along with their core principles and are also forth at the end of this article.^[1]

The Memorandum provides that once the heads of the executive departments and agencies determine that a regulation is “facially unlawful,” it must be repealed. It can be expected that a large number of regulations will be repealed.

Significantly, the Memorandum provides that in effectuating repeals, the agency heads are to finalize rules without the notice and public comment requirements under Section 553 of the Administrative Procedure Act (APA)^[2] whenever doing so is consistent with the “good cause” exception in the APA.  That exception allows agencies to dispense with notice-and-comment rulemaking when that process would be “impracticable, unnecessary, or contrary to the public interest.” According to the Memorandum, retaining and enforcing facially unlawful regulations is clearly contrary to the public interest, and notice-and-comment proceedings are “unnecessary” where repeal is required as a matter of law to ensure consistency with a ruling of the U.S. Supreme Court.

Dispensing with the notice-and-comment requirement will almost certainly be challenged by parties who benefit from the repealed regulations. There are a variety of bases on which challenges might be mounted. For one thing, the determination as to the constitutionality of the repealed regulations for purposes of applying the good cause exception is being made by the agencies themselves under the direction of the President. They are not being made by the courts who are the ultimate authority with respect to questions of constitutionality. Would a court, faced with a challenge to a fast-track repeal, agree that a particular repeal was “impracticable, unnecessary, or contrary to the public interest” on constitutional grounds when made solely by an agency under presidential direction? Might a court conclude that the agency’s rationale was in fact inadequate or clearly erroneous in any case? What of the fact that it is the President who is directing the agencies (in some instances independent agencies) to dispense with notice-and-comment, notwithstanding that under Section 553(b)(B) it is the agency that is to make the determination as to whether “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest?”

In addition, while the agencies are certain to invalidate a broad number and range of regulations, the fact remains that in many instances the question of constitutional infirmity will be subject to debate. In some cases, it may be difficult to distill a core principle arising out of a particular case for purposes of testing the constitutionality of a particular regulation. In other instances, even if a core principle can be distilled, it may be difficult to apply that principle to a particular regulation for the same purpose. 

This will almost certainly be the case with regard to many if not all 10 decisions.

By way of example, one of the cases cited is Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) which overturned the Chevron doctrine. The Memorandum provides that under Loper Bright and the repeal of the Chevron doctrine, agencies are to repeal any regulation that is not consonant with the “single, best meaning” of the statute authorizing it and to repeal any regulation that was promulgated in reliance on Chevron and could be defended only by relying on Chevron. Notwithstanding that under Loper Bright, the determination as to the constitutionality of a regulation is to be made by an Article III court without deference to the agency that promulgated it, and that in this case it is being made by the agency, the question whether an existing regulation is not consonant with the “single, best meaning” of the statute or was promulgated in reliance on Chevron will be difficult to ascertain.

Similarly, under West Virginia v. EPA, 597 U.S. 697 (2022), involving the application of the Major Questions Doctrine (i.e., where a regulation has a major impact on the economy or is of great political significance there must be clear congressional authorization for it), the Memorandum directs agencies to repeal any regulation promulgated in violation of this doctrine. But the question as to the applicability of the Major Questions Doctrine with respect to a regulation and if applicable as to whether there was clear congressional authorization is often subject to interpretation and debate as evidenced by post-West Virginia v. EPA litigation. Moreover, the Court made it patently clear in West Virginia v. EPA that the determination of what constitutes a Major Question can be made only by the Court, not by the agency itself.

The same can be said with respect to many other of the 10 decisions, including, for example:

• Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021), where the issue becomes determining when the terms of a regulation are inconsistent with the Constitution’s Taking Clause;

• Michigan v. EPA, 576 U.S. 743 (2015), agencies must repeal any regulation where the costs imposed are not justified by the public benefits; and

• Ohio v. EPA, 603 U.S. 279 (2024), agencies must repeal any regulation that does not sufficiently account for the costs it imposes, or for which foundational assumptions have changed and are no longer defensible.

In the health care context, while there are many regulations that CMS will want to preserve, there are others that could fit within one of these categories. These include Medicare and Medicaid regulations relating to enrollment, certification, coverage, disproportionate share payments and the like, along with certain fraud and abuse rules.

When and where we end up when all is said and done remains uncertain. And the 60-day period is just the beginning.

The 10 U.S. Supreme Court Decisions

1. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) overturned the Chevron doctrine.  Accordingly, agencies are to repeal any regulation that is not consonant with the “single, best meaning” of the statute authorizing it.   Agencies are also to repeal any regulation that was promulgated in reliance on the Chevron doctrine and that could be defended only by relying on Chevron deference.
2. West Virginia v. EPA, 597 U.S. 697 (2022) was a landmark ruling applying the Major Questions Doctrine, i.e., the principle that an agency cannot claim to discover vast delegations of power on an important issue in a statutory text that doesn’t clearly provide such authority. (Agencies cannot “seek to hide ‘elephants in mouseholes.’”)  Accordingly, agencies must repeal any regulation promulgated in violation of the Major Questions Doctrine.
3. SEC v. Jarkesy, 603 U.S. 109 (2024) held that it violates the Seventh Amendment for agencies to adjudicate common-law claims in their in-house courts.  Agencies accordingly must repeal any regulation authorizing enforcement proceedings that enable the agency’s courts to impose judgments or penalties that can only be obtained via jury trial in Article III Courts.
4. Michigan v. EPA, 576 U.S. 743 (2015) held that it violates the Administrative Procedure Act for an agency to promulgate regulations without properly considering the cost as well as the benefits.  Agencies accordingly must repeal any regulation where the costs imposed are not justified by the public benefits, or where such an analysis was never conducted to begin with.
5. Sackett v. EPA, 598 U.S. 651 (2023) ended a twenty-year attempt by the EPA to enforce the Clean Water Act against landowners whose property was near a ditch that fed into a creek, which fed into a navigable, intrastate lake.  Agencies accordingly must repeal any regulation inconsistent with a properly bounded interpretation of “waters of the United States.”
6. Ohio v. EPA, 603 U.S. 279 (2024) struck down an EPA plan under the Clean Air Act that the EPA had adopted after the scientific and policy premises undergirding it had been shown to be wrong.  Agencies accordingly must repeal any regulation that does not sufficiently account for the costs it imposes, or for which foundational assumptions have changed and are no longer defensible.
7. Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) held that a law that forced landowners to admit union organizers onto their property violated the Takings Clause. Agencies accordingly must repeal any regulation inconsistent with a proper understanding of the Takings Clause, which protects far more than just real estate from being taken by the government without compensation.
8. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) held that “affirmative action” admission programs violate the Equal Protection Clause of the Fourteenth Amendment.  Agencies accordingly must repeal any regulation that imposes racially discriminatory rules or preferences.  As the Court said, “[e]liminating racial discrimination means eliminating all of it.”
9. Carson v. Makin, 596 U.S. 767 (2022) held that a law excluding religious schools from participating in Maine’s school-voucher program violated the Free Exercise Clause.  Agencies accordingly must review their regulations to ensure equal treatment of religious institutions vis-à-vis secular institutions for purposes of funding and access to public benefits.
10. Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020) struck down New York’s Covid-era occupancy restrictions on churches and synagogues because they were uniquely harsher than those that applied to “essential” businesses — such as acupuncture facilities. Each agency should review its regulations to ensure at least equal treatment of religious institutions vis-à-vis secular institutions for regulatory purposes.

^[1] On April 9, the President issued a separate order requiring agencies to work with the Federal Trade Commission to complete a review of all regulations subject to their rulemaking authority and to identify those that impose anticompetitive restraints on the operation of the free market.

^[2] The requirement of notice-and-comment applies to the repeal of rules in addition to their promulgation.