Publication
Agencies to Use Good Cause Exception to Repeal Illegal Regulations
Recently, President Donald Trump directed agencies to take steps to immediately repeal illegal regulations under the good cause exception to the notice-and-comment requirement. Because this latest effort could have significant implications for future compliance, it is crucial that businesses remain apprised of current deregulatory efforts to ensure they make the most of any potential relief. At the same time, regulated parties must stay informed about any associated litigation to ensure ongoing legal compliance and remain mindful of state regulations.
Identifying Regulations to Repeal
On February 19, 2025, President Trump issued an executive order, Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative, which directed agencies to coordinate with the recently-formed Department of Government Efficiency (DOGE) to identify certain classes of regulations for potential elimination. These include:
- Unconstitutional regulations and regulations that raise serious constitutional difficulties, such as exceeding the scope of the power vested in the Federal Government by the Constitution;
- Regulations that are based on unlawful delegations of legislative power;
- Regulations that are based on anything other than the best reading of the underlying statutory authority or prohibition;
- Regulations that implicate matters of social, political, or economic significance that are not authorized by clear statutory authority;
- Regulations that impose significant costs upon private parties that are not outweighed by public benefits;
- Regulations that harm the national interest by significantly and unjustifiably impeding technological innovation, infrastructure development, disaster response, inflation reduction, research and development, economic development, energy production, land use, and foreign policy objectives; and
- Regulations that impose undue burdens on small businesses and impede private enterprise and entrepreneurship.
The deadline for identifying the offending regulations was April 20, 2025. Furthermore, the executive order directs the Office of Information and Regulatory Affairs (OIRA) to develop a plan to rescind or amend identified regulations.
Immediately Repealing Illegal Regulations
Along with DOGE’s ongoing identification efforts, on April 9, 2025, President Trump issued a memorandum, Directing the Repeal of Unlawful Regulations, which targets illegal regulations for immediate repeal. First, the memorandum directs agencies to focus their “review-and-repeal-effort” on regulations that are unlawful under ten fairly recent United States Supreme Court decisions.1 Second, the memorandum directs agencies to invoke the good cause exception, if applicable, to repeal illegal regulations without engaging in the notice and comment process.
Before creating, amending, or repealing a regulation, agencies must generally follow the notice-and-comment process, which involves (1) publishing a notice of proposed rulemaking, (2) giving interested persons an opportunity to provide comments on the proposed rule, and (3) deciding whether, in light of the comments received, to proceed with the rulemaking or issue a modified proposal.2 But agencies need not follow the notice-and-comment procedures if they would be “impracticable, unnecessary, or contrary to the public interest.”3
President Trump’s memorandum explains that the good cause exception applies to repealing illegal regulations because “[r]etaining and enforcing facially unlawful regulations is clearly contrary to the public interest,” and “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.”
Accordingly, the memorandum instructs agencies to immediately begin repealing illegal regulations. If agencies fail to take steps to repeal any regulations identified pursuant to the executive order, then they must explain their decision to OIRA.
Closing Thoughts
As agencies are currently evaluating their regulations for potential repeal, now is a critical time to communicate with federal regulators about regulations that should — or should not — be repealed.
On one hand, some believe swift repeals of regulations may alleviate the regulatory burden shouldered by many businesses. Simultaneously, lawsuits seeking to pause or reverse the regulatory repeals may follow. Further, while President Trump’s executive orders and memoranda pertain only to federal regulations, and some states have indicated plans to ramp up their own regulations in response to federal regulatory repeals, businesses should remain mindful of local regulations. Thus, while businesses may be eager to take advantage of potential benefits associated with deregulation, they should do so with consideration to the possibilities that regulatory relief may be temporary until these matters are fully litigated and with a careful eye on state regulations.
**Any opinions expressed are the authors’ and not necessarily those of the firm or their colleagues.
Footnotes
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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).
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5 U.S.C § 553.
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Id. § 553(b).
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