Supreme Court Decisions Cited for Regulatory Repeal Effort in Latest White House Memo
On April 9, 2025, the White House issued a memorandum titled “Directing the Repeal of Unlawful Regulations,” directing agency heads to repeal rules without notice and comment, where doing so is consistent with the “good cause” exception in the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)). The “good cause” exception allows agencies to dispense with notice-and-comment rulemaking when that process would be “impracticable, unnecessary, or contrary to the public interest.”
This review-and-repeal effort directs agencies to evaluate existing regulation’s lawfulness under several recent Supreme Court decisions such as Loper Bright Enterprises v. Raimondo and West Virginia v. EPA—decisions which limited the power of federal agencies to promulgate regulations absent explicit congressional authorization.
The memorandum is intended to reinforce Executive Order 14219, published on February 19, 2025, which directed the heads of all executive departments and agencies to identify categories of unlawful and potentially unlawful regulations within 60 days and begin plans to repeal them.
Following the 60-day review period ordered in Executive Order 14219, agencies are instructed 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.”
Keller and Heckman will continue to monitor developments related to the repeal of regulations and provide updates on how these changes impact regulated industries.
