You Can't Tell Me What to Do
Shoot first and ask questions later.
The Unsettling of Notice and Comment
Things are moving quickly. We won’t know the true impact of Loper for years to come, but the Administration is not wasting any time. They are using it to expedite the revocation of regulations deemed to be illegal under Loper, all without notice and comment.
Shoot first and ask questions later.
‘With the ink barely dry on the Court’s opinion in Loper Bright Enterprises v. Raimondo, we are beginning to see just how unsettled, and how unpredictable, the administrative governance game can be in a post-Loper Bright world. With a new memorandum, “Directing the Repeal of Unlawful Regulations,” President Donald J. Trump last week made a bold new move, invoking Loper Bright—as well as other recent administrative law innovations, such as the “major questions doctrine” from West Virginia v. EPA—to claim the authority to rescind potentially scores of existing regulations without even following standard administrative procedures.
‘Under the recent presidential memorandum, once an agency determines that a regulation is on its face unlawful “under” Loper Bright and other recent administrative law decisions, it must “finalize rules” rescinding those regulations “without notice and comment.” This means agencies would neither publish notices of proposed rulemakings as called for under Section 553 of the Administrative Procedure Act (APA) nor elicit public feedback on those proposals, also as provided for under the APA. Depending on how readily and extensively agencies arrive at a conclusion that existing regulations are no longer legally justified, this new “review-and-repeal” initiative could amount to a presidential power to force the recission of large numbers of existing regulations that, up to this point, would presumptively have been required to be rescinded only with deliberate care that took into account public input.’
Trump to Bureaucrats: Follow the Law
No more “elephants in mouseholes.”
‘First is Loper Bright v. Raimondo (2024), in which the Supreme Court finally overruled Chevron—the case that established the principle of deferring to federal agencies’ interpretations of ambiguous laws. For 40 years, Chevron forced courts to defer to the bureaucracy. Now, under Loper Bright, agencies are bound by the “single, best meaning” of the law. That is not a tremor; it’s a tectonic shift, for which my colleagues and I advocated in a 2023 Supreme Court amicus brief. Yet, many regulations still presume Chevron’s validity. Trump’s directive forces agencies to identify and repeal such rules.
‘Another case, West Virginia v. EPA, had a similar holding: agencies cannot conjure sweeping powers from incidental statutory text. By requiring the federal bureaucracy to comply with West Virginia, Trump’s memo ensures that agencies do not continue hiding “elephants in mouseholes” —a phrase coined by Justice Scalia to describe the tendency of agencies to find major regulatory power in minor statutory provisions. Instead of relying on years of slow-moving litigation, the White House is telling federal departments: if you cannot point to clear and specific congressional authorization, the rule must be rescinded.
‘No less important is SEC v. Jarkesy (2024). There, the Court agreed with my colleague James Copland that federal agencies cannot deny defendants’ jury-trial rights in fraud or other common-law prosecutions. Yet many in-house administrative tribunals continue to function as modern-day Star Chambers—conducting proceedings before agency-employed judges, under agency-crafted rules, often in pursuit of agency-driven enforcement priorities. Trump’s directive affirms that Seventh Amendment rights are not optional. Agencies cannot act as prosecutor, judge, and jury while sidestepping the Constitution.’
The Administration is now crowdsourcing ideas for regulations to eliminate. That’s one way to maintain comment.
It feels like the pivot from cost cutting to deregulation is under way.
‘The Department of Government Efficiency launched a portal for the public to pitch suggestions for clawing back excessive red tape earlier this month.
‘DOGE collaborated with the Office of Management and Budget and Government Services Administration in developing the regulations.gov/deregulation module for everyday Americans to highlight what they believe is excessive regulation.’
Inside Trump’s Plan to Halt Hundreds of Regulations
Move fast and dismantle things.
‘At Mr. Trump’s direction, agency officials are compiling the regulations they have tagged for the ash heap, racing to meet a deadline next week after which the White House will build its master list to guide what the president called the “deconstruction of the overbearing and burdensome administrative state.”
‘The approach, overseen by Russell T. Vought, the director of the White House Office of Management and Budget, rests on a set of novel legal strategies in which the administration intends to simply repeal or just stop enforcing regulations that have historically taken years to undo, according to people familiar with the plans. The White House theory relies on Supreme Court decisions — some recent and at least one from the 1980s — that they believe give them the basis for sweeping change.’
They really thought this through during their years in the wilderness.
‘Russell Vought, the director of the White House Office of Management and Budget and an architect of the Project 2025 blueprint, is overseeing the White House’s deregulation effort. Elon Musk’s Department of Government Efficiency is executing it.
‘In some cases, the administration believes it can simply revoke rules outright, without following the traditional yearslong process. In others, it plans to effectively nullify rules by directing agencies to stop enforcing them while the slow, legal unwinding process plays out.
‘Experts say parts of that plan are probably illegal. But it could quickly affect Americans’ lives regardless, as companies stop complying with rules concerning the environment, transportation, food, workplace safety and more without fear of government penalties.’