The Trump administration’s recent initiative seeks to accelerate the removal of federal regulations by circumventing traditional rulemaking procedures, a move that hinges on judicial acceptance of a broad interpretation of the Administrative Procedure Act (APA). This regulatory overhaul is aligned with President Trump’s directive for agencies to assess existing regulations against recent Supreme Court decisions, particularly those that delineate the constitutional limits of agency powers. Trump’s memo to agencies suggested that regulations deemed unlawful in light of these decisions could be summarily eliminated without the customary notice-and-comment process stipulated by the APA.
The plan revolves around using the “good cause” exception in the APA to bypass typical rulemaking steps. Historically, courts have narrowly defined this exception, often confining its use to circumstances where compliance with procedural requirements would conflict with public interest or prove impracticable—such as during emergencies. Legal scholars, including Kristin Hickman from the University of Minnesota, warn that this interpretation effectively undermines the APA’s fundamental principles, potentially leading to contentious legal battles that could impede the swift deregulation sought by the administration.
The administration has deftly outlined its intentions in a February executive order, urging agencies to identify and expedite the repeal of rules that are either defective or excessively burdensome. Additionally, Trump has instructed agencies to incorporate sunset provisions for certain regulations, particularly those concerning environmental and energy matters, allowing them to expire swiftly unless re-evaluated.
Legal experts, such as Kevin Minoli from Alston & Bird LLP, note that the strategy of merely declaring regulations void based on Supreme Court decisions is substantially less resource-intensive than following the full rulemaking procedure. Nonetheless, the approach faces significant obstacles, including the dual burdens of proving a regulation’s illegality and justifying the suspension of the rulemaking process under the APA’s good cause exception.
Jennifer Selin, an administrative law scholar at Arizona State University, observes that courts typically assess whether bypassing the usual procedures would be detrimental to the public interest. Historically, this has been construed in scenarios where delays would lead to adverse consequences. However, the Trump administration contends that retaining unlawful regulations inherently contradicts public interest, a stance that diverges from conventional judicial interpretations. Moreover, Anne Joseph O’Connell from Stanford University highlights that courts generally differentiate between case-specific rulings and broader regulatory applications, necessitating proposals for repeal when not directly aligned with judicial decisions.
William Buzbee of Georgetown University notes that while recent Supreme Court decisions reshaping the landscape of agency review and authority underpin this deregulatory drive, none conclusively empower a wholesale bypass of established procedural norms. The administration’s reliance on pivotal cases such as Loper Bright Enterprises v. Raimondo and West Virginia v. EPA underscores its intent to leverage these decisions to fortify its regulatory rollback efforts.
Despite the administration’s bold plan, the scope and impact of deregulation remain uncertain, contingent upon the determinations of various federal agencies. Critics, such as Stacey Halliday from Arnold & Porter Kaye Scholer LLP, argue that the costs associated with this legal strategy may not justify its potential benefits, as more conventional methods for regulatory relief exist within the current framework.
For a deeper exploration of these legal nuances, visit the original article on Bloomberg Law.