Recently, I blogged about how Republican members of the House Committee on Financial Services sent this letter to the SEC asking it to retract a total of 14 adopted – and proposed – rules. In a related vein, President Donald Trump released this Presidential Memorandum last week, further implementing an executive order that was issued back on February 19th: Executive Order 14219, “Ensuring Lawful Governance and Implementing the President’s Department of Government Efficiency Deregulatory Initiative.”
Under that Executive Order, federal agencies are to, within 60 days of the date of when it was issued – February 19th – identify regulations (either fully or partially) that are “unconstitutional regulations and regulations that raise serious constitutional difficulties, such as exceeding the scope of the power vested in the Federal Government by the Constitution.” According to the new Memorandum, as well as the related fact sheet, federal agencies are to use the 10 US Supreme Court cases listed in the Memorandum to make that assessment.
Following the 60-day review period ordered in Executive Order 14219, federal agencies are required to immediately take steps to effectuate the repeal of any regulation, or the portion of any regulation, that clearly exceeds the agency’s statutory authority or is otherwise unlawful. Agencies are asked to give priority to the regulations that they believe are in conflict with the 10 Supreme Court decisions listed.
If a federal agency can rely upon the Administrative Procedure Act’s “good cause” exception from notice and comment rulemaking, each regulation to be repealed will be accompanied by a brief statement of the reasons that the “good cause” exception applies. This exception permits federal agencies to skip the notice and comment requirement if “the agency for good cause finds” that compliance would be “impracticable, unnecessary, or contrary to the public interest” and bypass its 30-day publication requirement if good cause exists.
Within 30 days of the conclusion of the review period directed in Executive Order 14219, federal agencies are required to submit a one-page summary of each regulation that was initially identified as falling within one of the categories specified in Section 2(a) of that Executive Order – but which was not targeted for repeal – explaining the basis for the decision not to repeal the regulation to the Office of Information and Regulatory Affairs.
It will be interesting to see which rules the SEC identifies and repeals during this exercise …
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