President Trump has issued another Executive Order (EO) on regulatory reform. This one directs all federal agencies to delete all unlawful regulations that were promulgated in reliance on now-superseded Supreme Court decisions.

In particular, the EO listed ten Supreme Court decisions on which to base these actions, including Loper Bright Enterprises v. Raimondo, which eliminated judicial deference to agency interpretations of their enabling statutes or regulations, and West Virginia v. EPA, which held that agencies must have specific authority from Congress to regulate in areas of major questions of economic or political importance.

Most important, the EO provides that after identifying 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, without going through notice and comment rulemaking as is normally required under the Administrative Procedure Act.

The EO asserts that agency heads should withdraw 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."  

The White House states, "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."