Presidential Memorandum Directing the Repeal of Unlawful Regulations

I. Introduction

On April 9, 2025, President Trump signed a Presidential Memorandum “Directing the Repeal of Unlawful Regulations” and an accompanying “Fact Sheet” (the Presidential Memorandum and the Fact Sheet shall hereinafter be referred to as the “Memorandum”) directing the heads of federal agencies to expeditiously repeal “facially unlawful regulations.” The Memorandum requires the agencies to prioritize the repeal of regulations that conflict with ten Supreme Court decisions listed in the Memorandum, and requires the agencies to act without following the Administrative Procedure Act’s (APA) notice and comment requirements where doing so is consistent with the “good cause” exception found in the APA. 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.”

The Memorandum directs the agencies to give priority to the repeal of regulations that are in conflict with the ten cited cases. It explains that good cause exists to act without notice and comment because retaining and enforcing facially unlawful regulations is clearly contrary to the public interest.  It also states that 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.

This memorandum provides background on the scope of the “good cause” exception in the APA. It then analyzes the holdings in the ten Supreme Court cases to determine which cases could support a repeal of existing rules without following notice and comment procedures.

This memorandum finds that the majority of the ten Supreme Court cases cited in the Memorandum relate to specific statutory provisions or to precise factual situations, and therefore do not provide a basis for concluding that other regulations, not at issue in the cited Supreme Court decisions, are either “facially unlawful” or required to be repealed as a matter of law without notice and comment. Moreover, to the extent that these other regulations resemble the rules struck down by the Court, public interest would be served if the agency solicits public comment in determining the degree to which the regulation sought to be repealed differs from the regulation struck down by the Court. In sum, we conclude that with respect to the impact of the ten Supreme Court cases, notice and comment procedures are likely to be required except in the few instances that a Supreme Court decision is not limited by the facts in the case, the clarifying language used in the decision, or the statute being interpreted by the Court. Likewise, to the extent that the agencies identify regulations for repeal based on Supreme Court cases or statutory changes that were not specifically mentioned in the Presidential Memorandum, the legal principles discussed below indicate that the widespread use of the “good cause” exception is unlikely to be condoned by the courts.

II. The Good Cause Exception

In proposing, amending, or repealing a regulation, the APA generally requires agencies to publish notice in the Federal Register, provide a 100 word summary of the proposal on the internet, solicit public comments on the proposal, and then issue a final rule explaining the agency’s rationale and responses to the comments filed. The APA also authorizes agencies to take such actions without going through these procedures when the agency for “good cause” finds that notice and public comment are “impracticable, unnecessary, or contrary to the public interest.”

The APA does not provide a detailed description of what constitutes good cause, and the court decisions are not entirely consistent. Nonetheless, the case law is clear that the good cause exception is to be “narrowly construed and only reluctantly countenanced.”

The Court of Appeals for the Second Circuit summarized the limitations in the application of the good cause exception when it held that the National Highway Traffic Safety Administration could not use the “good cause” procedure to reconsider a delay in the implementation of a rule following a change in the Administration. The court explained:

…[T]he good cause exception applies only in circumstances when notice and comment is "impracticable, unnecessary, or contrary to the public interest." Impracticality is fact and context specific but is generally confined to emergency situations in which a rule would respond to an immediate threat to safety, such as to air travel, or when immediate implementation of a rule might directly impact public safety. The exception may also be invoked when notice and comment are “unnecessary.” This prong “is confined to those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.” And, finally, an agency may invoke the good cause exception if notice and comment would be “contrary to the public interest.” Of course, since notice and comment are regarded as beneficial to the public interest, for the exception to apply, the use of notice and comment must actually harm the public interest. [Internal citations omitted]

The D.C. Circuit Court of Appeals defines good cause similarly, but notes that the exception could also apply “when the very announcement of a proposed rule itself could be expected to precipitate activity by affected parties that would harm the public welfare.” For example, the exception could apply if the announcement of a proposed rule would enable the sort of financial manipulation the rule sought to prevent.

III. Supreme Court Decisions and Good Cause

The Supreme Court decisions cited in the Memorandum may serve as a basis for the application of the “good cause” exception if a regulation is inconsistent with the decisions, and notice and comment is either “unnecessary” or “contrary to the public interest.”

The Memorandum states that “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.”  The case law defines the term “unnecessary” to cover a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public. To quote the relevant Senate report, “‘Unnecessary’ means unnecessary so far as the public is concerned, as would be the case if a minor or merely technical amendment in which the public is not particularly interested were involved.”

To the extent that a Supreme Court decision specifically undermines the basis for a regulation, such that no part of the rule survives the Court’s decision, notice and comment could be viewed as unnecessary to repeal the rule. However, this would not apply when the Supreme Court makes a more subtle decision, for example, mandating the use of a new consideration in a cost benefit analysis relating to one aspect of a regulation. In that situation the Court is not declaring that the substance of the rule is invalid, only that the procedures used in formulating the rule were deficient. Notice and comment rulemaking would assist the agency in determining how to consider the new factors now required by the Court, alternatives to minimize costs, and whether the entire rule needs to be repromulgated or only selected provisions. Also, if the Court’s decision impacts only a part of the regulation, the agency would have to use notice and comment rulemaking to repeal the entire rule.

The Memorandum also asserts that “retaining and enforcing facially unlawful regulations is clearly contrary to the public interest.” [Emphasis added] As noted previously, “since notice and comment are regarded as beneficial to the public interest, for the exception to apply, the use of notice and comment must actually harm the public interest.” To the extent that a Supreme Court decision clearly invalidates a regulation, an argument could be made that quickly repealing the rule without notice and comment would prevent any confusion as to the effect of the rule, and therefore would be in the public interest. In this instance, the regulation is “facially” unlawful. However, where the Court decision is more nuanced, and it is not absolutely clear that it applies to regulations other than the one at issue in the Court’s decision, the notice and comment procedure should be followed. For example, if the Court determines that a regulation is inconsistent with an authorizing statute, that does not mean that similar regulations promulgated pursuant to other statutes may be repealed without notice and comment.

In sum, a Supreme Court decision may serve as a basis for applying the “good cause” exception in the repeal of a regulation only if there is a clear connection between the decision and the regulation to be repealed. In the section below, we discuss the ten decisions cited in the Memorandum and how they may, or may not, serve as a basis for the application of the good cause exception. In each case we first present the Administration position on the case, as found in the Fact Sheet, then provide a comment.

IV. The Ten Supreme Court Cases

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)

Administration: This case overturned the Chevron doctrine that requires courts to defer to agency interpretations of ambiguous statutes. The Memorandum states that “agencies are to repeal any regulation that is not consistent with the ‘single, best meaning’ of the statute authorizing it.”  Agencies are also to repeal any regulation that was promulgated in reliance on the Chevron doctrine and that could be defended only by relying on Chevron deference.

Comment: The Loper Bright decision explicitly saved all prior decisions that involved Chevron deference, and therefore the decision in Loper Bright is to be applied prospectively only. As a result, Loper Bright cannot be cited as a basis for repealing any regulation pre-dating that decision.

West Virginia v. EPA, 597 U.S. 697 (2022)

Administration: This case struck down an EPA regulation under the “major questions doctrine.” This doctrine states that there must be clear statutory authority before an agency can issue a rule that makes a radical or fundamental change in policy, or that has significant economic or political impact. The Memorandum asserts that agencies must repeal any regulation promulgated in violation of the major questions doctrine. 

Comment: West Virginia v. EPA does not provide a basis for the “good cause” exception. The determination of whether a regulation qualifies as a “major question,” as well as the determination of whether Congress provided clear authority for the rule, are subjective determinations that would benefit from public comment. West Virginia v. EPA does not make any rule, other than the one at issue in that case, “facially unlawful” or “required to be repealed as a matter of law.”

SEC v. Jarkesy, 603 U.S. 109 (2024)

Administration: In Jarkesy, the Supreme Court held that under the Seventh Amendment, agencies may not adjudicate common law claims in administrative adjudicatory proceedings. Agencies accordingly must repeal any regulation authorizing enforcement proceedings that enable the agency’s courts to impose judgments or penalties that can only be obtained via jury trial in Article III Courts.

Comment: The decision in Jarkesy is narrowly limited to civil penalties resulting from causes of action that resemble “common law” causes of action, and where the penalty is imposed to punish the perpetrator, rather than to restore the status quo, i.e., make the injured party whole. A common law cause of action is an action based on “common law,” such as fraud, breach of contract, or personal injury (tort). Jarkesy involved a claim of securities fraud, and the Court therefore found it “resembled” a common law fraud case.

In addition, the Court stated that the Jarkesy ruling does not require a jury trial when the issues relate to so-called “public rights,” such as matters concerning the collection of revenue; aspects of customs law; immigration law; relations with Indian tribes; the administration of public lands; and the granting of public benefits.

Thus, the Jarkesy case does not provide a basis for agencies to repeal, without notice and comment, a wide range of civil penalty procedures that were distinguished by the Court in its opinion. Also, agencies cannot use the “good cause” exception to repeal an entire rule if only one section of the rule is affected by Jarkesy.

Michigan v. EPA, 576 U.S. 743 (2015)

Administration: In this case, the Supreme Court held that it violates the APA for an agency to promulgate regulations without properly considering the cost as well as the benefits.  Accordingly, agencies must repeal any regulation where the costs imposed are not justified by the public benefits, or where such an analysis was never conducted to begin with.

Comment: This case involved the proper interpretation of the Clean Air Act that authorized the EPA to issue regulations that are “appropriate and necessary.” The Supreme Court reviewed the statute and the context in which the rulemaking instruction was given and concluded that in this instance the EPA was required to consider the costs and benefits of its rule. The Supreme Court was careful to limit its holding to the Clean Air Act and noted “there are undoubtedly settings in which the phrase ‘appropriate and necessary’ does not encompass cost.” The Court also stated that the EPA was not required to conduct a “formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value. It will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost.”

Given the narrow scope of the ruling in Michigan v. EPA, it does not provide a basis for the repeal of regulations without notice and comment. This case does not make any regulation promulgated under a different statute facially unlawful or require repeal of such regulations “as a matter of law.”

Sackett v. EPA, 598 U.S. 651 (2023)

Administration: This case ended a twenty-year attempt by the EPA to enforce the Clean Water Act against landowners whose property was near a ditch that fed into a creek, which fed into a navigable, intrastate lake.  Agencies accordingly must repeal any regulation inconsistent with a properly bounded interpretation of “waters of the United States.”

Comment: In Sackett v. EPA, the Supreme Court interpreted the Clean Water Act’s definition of “waters of the United States” to mean (i) a relatively permanent body of water connected to traditional interstate navigable waters; and (ii) wetlands that have a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins. Any part of an EPA regulation issued under the Clean Water Act that is clearly inconsistent with this definition could be repealed without notice and comment, but not the remainder of the rule. Rules that are promulgated under other statutory authorities should not be deemed facially unlawful or required to be repealed as a matter of law.

Ohio v. EPA, 603 U.S. 279 (2024)

Administration: This case struck down an EPA plan under the Clean Air Act that the EPA had adopted after the scientific and policy premises undergirding it had been shown to be wrong.  Agencies accordingly must repeal any regulation that does not sufficiently account for the costs it imposes, or for which foundational assumptions have changed and are no longer defensible.

Comment: In this case, the Supreme Court approved a “stay” against enforcement of an EPA rule, and in doing so determined that the opponents of the rule were “likely to succeed” on the merits. The Court noted the well-established rule that an agency must offer “a satisfactory explanation for its rulemaking including a rational connection between the facts found and the choice made” and cannot simply ignore “an important aspect of the problem.”

The Supreme Court found that this standard was likely violated because public comments raised important policy issues and the EPA “offered no reasoned response.”

The Court, by issuing a stay, technically did not resolve the underlying legal dispute. Further, the stay was based on the particular public comments made to the agency and the agency’s lack of response. This case does not support the use of the “good cause” exception for any other rule.

Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021)

Administration: In Cedar Point Nursery, the Supreme Court held that a law that forced landowners to admit union organizers onto their property violated the Takings Clause. Accordingly, agencies must repeal any regulation inconsistent with a proper understanding of the Takings Clause, which protects far more than just real estate from being taken by the government without compensation.

Comment: Here the Supreme Court held that a state law allowing union organizers to enter private property for up to 3 hours per day to engage in organizing activities was a “taking” under the Constitution. Under the Constitution, a taking of a property right requires just compensation.

The Court made clear that this case does not apply to areas that are open to the public, such as a shopping center. The case likewise does not apply when the Government or a third party enters property in the event of public or private necessity, such as to avert serious harm to a person or property, or to avert an imminent public disaster. Nor does it restrict the ability of the Government to engage in reasonable search and seizure activities, to effect arrests, or to engage in health or safety inspections.

Thus, Cedar Point supports the repeal, without notice and comment, of federal rules that require a property owner to allow union organizers to enter private property, provided the property is not otherwise open to the public. While it may be expanded to include other types of physical intrusions, it is not likely to apply to regulations pursuant to which Government agencies are authorized to enter private areas. Use of this case to repeal rules without notice and comment should be limited to fact situations closely resembling the state law at issue in Cedar Point.

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023)

Administration: In Students for Fair Admissions, Inc., the Supreme Court held that “affirmative action” admission programs violate the Equal Protection Clause of the Fourteenth Amendment.  Accordingly, agencies must repeal any regulation that imposes racially discriminatory rules or preferences.  As the Court said, “[e]liminating racial discrimination means eliminating all of it.” 

Comment: In this case, the Court considered Harvard’s and the University of North Carolina’s affirmative action programs and held that they violate the Equal Protection Clause because they lack “sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” The limited nature of this decision is illustrated by the Court’s statement that the case does not address whether race based admissions are Constitutional for the military academies, noting “the potentially distinct interests that military academies may present.” Thus, it is possible that an affirmative action plan that differs from the Harvard and UNC programs could pass judicial scrutiny, or that in certain cases other public interests may justify such programs. In light of this, the Students for Fair Admissions decision would not justify the repeal, without notice and comment, of regulations that support affirmative action plans that can be distinguished from the Harvard and UNC plans, for example, because the plans involve military academies.

Carson v. Makin, 596 U.S. 767 (2022)

Administration: This case held that a law excluding religious schools from participating in Maine’s school-voucher program violated the Free Exercise Clause.  Accordingly, agencies must review their regulations to ensure equal treatment of religious institutions vis-à-vis secular institutions for purposes of funding and access to public benefits.

Comment: In Carson v. Makin, the Supreme Court considered a state law that provides tuition assistance for children who reside in an area without a public secondary school. The Supreme Court held that a state cannot exclude some members of the community from an otherwise generally available public benefit because of their religious exercise. The Court considered a number of factors in reaching this decision, including the fact that the parents, not the state, decided on which school to use. This case supports the use of the good cause exception for regulations that have the same elements as the Maine law. If the regulation has significant differences with the Maine law, notice and comment rulemaking would be more appropriate.

Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020)

Administration: This case struck down New York’s Covid-era occupancy restrictions on churches and synagogues because they were uniquely harsher than those that applied to “essential” businesses—such as acupuncture facilities.  Each agency should review its regulations to ensure at least equal treatment of religious institutions vis-à-vis secular institutions for regulatory purposes. 

Comment: The Supreme Court issued an injunction against a state order limiting attendance at churches and synagogues due to the COVID epidemic. In granting the injunction, the Court found that the plaintiffs were likely to prevail on the merits, but did not decide the underlying case. The Court stated that the plaintiffs made a strong showing that the challenged restrictions violate the requirement of neutrality to religion. The Court noted that the order singles out houses of worship for especially harsh treatment as compared to other facilities that have no limit. The Court took note that less intrusive regulations could have been imposed, such as limiting attendance based on the size of the church or synagogue, or a percentage of membership.

The Administration’s documents state that each agency shall review its regulations to ensure at least equal treatment of religious institutions vis-à-vis secular institutions for regulatory purposes. This is not consistent with the Court’s holding. The Court found that the state mandate was too stringent as applied to religious organizations, but did not require that religious and non-religious organizations have equal treatment. Rather, this case stands for the proposition that regulation of religious organizations should be “narrowly tailored” to serve a “compelling” state interest. This is not the same as equal treatment, and therefore does not support repealing, without notice and comment, regulations that recognize that different requirements may apply to religious versus secular organizations.

V. Identification of “Other” Rules

In addition to the ten Supreme Court decisions specified in the Memorandum, the agencies are directed under Executive Order No. 14219 to review all regulations for consistency with law and Administration policy, and identify classes of regulations determined to be unconstitutional, based on unlawful delegations of power, regulations that are not based on the best reading of a statute, and regulations in which the benefit of the rule does not exceed the economic cost, among other specified factors. To the extent that an agency seeks to repeal a rule that appears to meet one or more of these criteria, the agency would not have “good cause” to avoid notice and comment procedures unless the stringent standards described above are met. Thus, agency reliance on the good cause exception would be limited to instances in which: (i) an emergency exists necessitating immediate action; (ii) the agency can objectively find that the rule is facially unlawful (such as when the underlying statute has been held to be unlawful or unconstitutional); or (iii) where the agency can demonstrate that using a notice and comment process would cause actual harm to the public interest. Unless a rule is clearly and objectively unlawful or injurious, it would be difficult to support a finding that notice and comment are harmful to the public.

VI. Conclusion

The courts have stated that the good cause exception is narrow and only reluctantly allowed. The majority of the cases cited in the Memorandum relate to specific statutory provisions or to precise factual situations and therefore do not provide a basis for concluding that other regulations are either “facially unlawful” or required to be repealed as a matter of law. To the extent that these other regulations closely resemble the rules struck down by the Court, it nevertheless may be required to use notice and comment rulemaking procedures, except in the few instances that the Supreme Court decision is not limited by the facts in the case, the clarifying language used in the decision, or the statute being interpreted by the Court.