On April 9, 2025, President Trump issued a memorandum directing federal agencies to begin repealing regulations deemed “clearly unlawful,” particularly those invalidated or undermined by recent Supreme Court rulings such as Loper Bright, West Virginia v. EPA, SEC v. Jarkesy and others. The memorandum directs to rely on the “good cause” exception under the Administrative Procedure Act (APA) to immediately repeal such rules without undergoing a notice-and-comment process. This action coincides with a 60-day review period established by Executive Order (EO) 14219 for identifying such regulations, and a Request for Information (RFI) on deregulation issued by the Office of Management and Budget (OMB). These actions represent a significant shift in the way rules could be rescinded or revised, which could face legal challenges.
Memorandum Overview
The memorandum explains to agencies that the review and repeal effort should prioritize evaluating the lawfulness of regulations under recent Supreme Court decisions, including:
- 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).
For any regulations deemed facially unlawful, the heads of agencies are allowed to finalize rules without notice and comment, consistent with the “good cause” exception in the APA. The infrequently used exception allows agencies to bypass the notice and comment process when it would be “impracticable, unnecessary, or contrary to the public interest.” Historical uses of the “good cause” exception are often in response to statutory deadlines or emergencies that require expedited rulemakings. The memorandum states that notice-and-comment proceedings are “unnecessary” when applied to rules that violate Supreme Court decisions.
The 60-day review period for regulations under EO 14219 ends on April 20, when agency heads must submit a list of “unlawful” regulations to the Office of Information and Regulatory Affairs (OIRA). Agencies are directed to prioritize regulations in conflict with the 10 Supreme Court decisions, accompanied by a statement of the reasons that the “good cause” exception applies to each rule.
Within 30 days of the conclusion of the review period (May 20), agencies must also submit a report to OIRA detailing each regulation identified as falling within one of the covered categories specified under EO 14219, but which has not been targeted for repeal, explaining the basis for the decision not to repeal that regulation.
OMB Request for Information
Alongside the EO and memorandum, OMB’s April 11 RFI seeks comment on any and all regulations currently in effect. The RFI details that comments should address the reasons for a rule’s proposed recission, requesting that commenters highlight regulations that are: (1) inconsistent with statutory text or the Constitution, (2) where costs exceed benefits, (3) where the regulation is outdated or unnecessary, or (4) where regulation is burdening American businesses in unforeseen ways. Comments on the RFI are due by May 12.
The OMB RFI represents a centralized source for businesses to share information about rules, spanning across all industries. It also aligns with President Trump’s broader deregulatory agenda, as outlined in the “Unleashing Prosperity Through Deregulation” EO, which mandates that agencies eliminate at least 10 existing regulations for every new one introduced. Agencies such as the Federal Communications Commission (FCC) have issued their own RFIs to receive public comments on whether specific regulations should be modified or eliminated due to being unnecessary or overly burdensome. For Brownstein’s analysis of the FCC’s In Re: Delete, Delete, Delete” RFI, click here.
Next Steps
The deregulatory efforts across the administration may provide benefits for regulated entities for certain overly complex or burdensome regulations. However, beneficial regulations that provide safe harbors or needed clarity from outdated statutes could also be repealed without the opportunity for stakeholder engagement. Any rules repealed or revised without a notice and comment could invite legal challenges, and the resulting uncertainty could pose difficulties for corporate compliance management.
The White House and OMB are seeking input from industry, and it is critically important to help provide a roadmap about which regulations should be considered. Stakeholder engagement is essential during this time, and the Brownstein Government Relations team is available to assist companies in submitting comments and evaluating the regulatory landscape across numerous industries.
