Policy Consultants

In Trump v. Slaughter, the U.S. Supreme Court made a profound change to the administrative state. The Court ruled that "for cause" removal protections for members of the Federal Trade Commission (FTC) are an unconstitutional infringement on the President's executive powers. Gone is Humphrey's Executor v. United States, the seminal case that upheld limits on the President's authority to remove FTC Commissioners, and nine decades of independent agency leadership with a degree of insulation from Presidential control. The implication of Slaughter for other independent agencies, including the...

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...

There is now a form on Regulations.gov for submitting deregulation ideas in response to last week's OMB RFI. A few observations: The form seems designed to support automated generation of draft Federal Register proposed and final rules through AI-augmented document assembly. The structure of the form roughly follows the structure of a proposed or final rule. It also includes instructions that clearly come from guidance to writers of Federal Register rules. (They forgot to take out this line: "If this is a final rule, you should respond to any relevant and timely comments.") In addition to...

TLDR: "Are there any regulations you want to repeal?" I guess the White House is unhappy with the volume of regulation repeal ideas coming out of the regulatory review under EO 14219: they're about to ask the public for help. I doubt the Federal Register has ever seen an RFI as short as this one, filed on public inspection and scheduled to be in tomorrow's Federal Register.

Major developments re the Deregulation EO 14219, including a plan to bypass notice-and-comment on some regs. A new EO signed yesterday orders agency heads to bypass notice-and-comment if a rule they want to repeal is "in conflict with" one of 10 listed Supreme Court decisions (including Loper Bright and Jarkesy). Agency heads are to prioritize this immediately after the scheduled end of the regulatory review on April 20, invoking the "good cause" exception under the APA. The original EO 14219 ordered a comprehensive review of regulation and guidance under seven factors, four of which...

The en banc DC Circuit, citing Humphrey's Executor, has vacated the panel's stay of the district court's order restoring the fired MSPB and NLRB members. Especially interesting for financial services given the panel draw in the CFPB injunction appeal -- two of four dissenting judges are on the three-member CFPB panel. The court: "The Supreme Court has repeatedly told the courts of appeals to follow extant Supreme Court precedent unless and until that Court itself changes it or overturns it."