Directing the Repeal of Unlawful Regulations

Memorandums

TLDR

This memorandum directs federal agencies to rapidly repeal regulations deemed “unlawful” based on 10 recent Supreme Court decisions that limit agency authority. Agencies must identify such regulations within 60 days, bypass normal rulemaking procedures using the “good cause” exception, and immediately repeal regulations exceeding their authority. This represents a significant deregulatory initiative that shifts power from agencies to the White House and prioritizes economic growth over regulatory protections in areas including environmental protection, financial regulation, education, and civil rights.

This memorandum follows up on Executive Order 14219 issued on February 19, 2025, titled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative.” The directive instructs federal agencies to:

  1. Identify “unlawful” regulations within 60 days (as mandated by EO 14219)
  2. Immediately repeal regulations deemed to exceed agency authority
  3. Use the “good cause” exception to bypass normal notice-and-comment rulemaking
  4. Prioritize repealing regulations that conflict with 10 specific Supreme Court decisions
  5. Submit justifications for any regulations initially flagged but not repealed

The memorandum cites 10 Supreme Court decisions as the legal basis for determining which regulations should be repealed. These cases represent significant conservative jurisprudence that has limited federal agency power:

  • Loper Bright (2024): Overturned Chevron deference, reducing judicial deference to agency interpretations
  • West Virginia v. EPA (2022): Limited EPA’s authority to regulate greenhouse gases under the Clean Air Act
  • SEC v. Jarkesy (2024): Ruled that SEC administrative proceedings violate the right to jury trial
  • Sackett v. EPA (2023): Narrowed the definition of “waters of the United States” under the Clean Water Act
  • Ohio v. EPA (2024): Further limited EPA’s authority to regulate power plant emissions
  • Cedar Point Nursery (2021): Expanded property rights protections against government access
  • Students for Fair Admissions (2023): Prohibited race-conscious college admissions policies
  • Carson v. Makin (2022): Required states that fund private education to include religious schools

This directive represents a significant deregulatory effort that:

  1. Accelerates regulatory repeal by bypassing normal rulemaking procedures
  2. Shifts substantial power from agencies to the White House
  3. Prioritizes economic growth over regulatory protections
  4. Uses recent conservative Supreme Court decisions to justify widespread deregulation
  5. May impact regulations across multiple domains including environmental protection, financial regulation, education, and civil rights

The use of the “good cause” exception to bypass notice-and-comment is legally controversial. The memo argues that enforcing “facially unlawful” regulations is “contrary to the public interest,” but this broad interpretation may face legal challenges. The memorandum effectively creates a fast-track process for eliminating regulations deemed inconsistent with the administration’s interpretation of recent Supreme Court decisions.

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: DIRECTING THE REPEAL OF UNLAWFUL REGULATIONS

Promoting economic growth and American innovation are top priorities of this Administration. Unlawful, unnecessary, and onerous regulations impede these objectives and impose massive costs on American consumers and American businesses. In recent years, the Supreme Court has issued a series of decisions that recognize appropriate constitutional boundaries on the power of unelected bureaucrats and that restore checks on unlawful agency actions. Yet, despite these critical course corrections, unlawful regulations — often promulgated in reliance on now-superseded Supreme Court decisions — remain on the books.

Consistent with these priorities and with my commitment to restore fidelity to the Constitution, on February 19, 2025, Iissued Executive Order 14219 (Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative_)_. It directed the heads of all executive departments and agencies to identify certain categories of unlawful and potentially unlawful regulations within 60 days and begin plans to repeal them. This review-and-repeal effort shall prioritize, in particular, evaluating each existing regulation’s lawfulness under the following UnitedStates Supreme Court decisions:

  1. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024);
  2. West Virginia v. EPA, 597 U.S. 697 (2022);
  3. SEC v. Jarkesy, 603 U.S. 109 (2024);
  4. Michigan v. EPA, 576 U.S. 743 (2015);
  5. Sackett v. EPA, 598 U.S. 651 (2023);
  6. Ohio v. EPA, 603 U.S. 279 (2024);
  7. Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021);
  8. Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023);
  9. Carson v. Makin, 596 U.S. 767 (2022); and
  10. Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020).

In effectuating repeals of facially unlawful regulations, agency heads shall finalize rules without notice and comment, where doing so is consistent with the “good cause” exception in the Administrative Procedure Act. That exception allows agencies to dispense with notice-and-comment rulemaking when that process would be “impracticable, unnecessary, or contrary to the public interest.” Retaining and enforcing facially unlawful regulations is clearly contrary to the public interest. Furthermore, notice-and-comment proceedings are “unnecessary” where repeal is required as a matter of law to ensure consistency with a ruling of the United States Supreme Court. Agencies thus have ample cause and the legal authority to immediately repeal unlawful regulations.

Accordingly, I hereby direct:

  1. Following the 60-day review period ordered in Executive Order 14219 to identify unlawful and potentially unlawful regulations, agencies shall 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 should give priority to the regulations in conflict with the UnitedStates Supreme Court decisions listed earlier in this memorandum. The repeal of each unlawful regulation shall be accompanied by a brief statement of the reasons that the “good cause” exception applies.

  2. Within 30 days of the conclusion of the review period directed in Executive Order 14219 to identify unlawful and potentially unlawful regulations, agencies shall submit to the Office of Information and Regulatory Affairs 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 has not been targeted for repeal, explaining the basis for the decision not to repeal that regulation.