Deregulatory Executive Orders: Issues Under The Administrative Procedure Act

• Published date: 21 April 2025
• Subject Matter: Government, Public Sector, Constitutional & Administrative Law, Government Contracts, Procurement & PPP
• Law Firm: Arnold & Porter
• Author: Sam Callahan, Andrew Tutt, Stephen Wirth, John P. Elwood, Elisabeth S. Theodore, Sam Ferenc, Travis Annatoyn and Sonia Tabriz

Executive Summary

On April 9, 2025, President Trump issued four executive orders and presidential memoranda directing a range of deregulatory actions by agencies across the executive branch. These orders are remarkable in their scope, directing agencies (even independent ones) to review and revoke an expansive set of regulations across numerous subjects. But the orders are also remarkable in the procedures they compel. Two orders direct (or at the least strongly encourage) the relevant agencies to revoke regulations without going through the notice-and-comment process that is generally required under the Administrative Procedure Act (APA). The orders command these unusual steps using novel theories ' including that the president himself, as opposed to the agency, can deem notice and comment unnecessary. Another of the orders directs numerous agencies to insert "sunset clauses" into energy-related regulations en masse, seemingly without advance notice and comment or an individualized assessment of the consequences of phasing out particular rules.

Litigants will likely challenge rescissions and sunsetting actions directed in these orders as both procedurally and substantively invalid under the APA. Procedurally, the APA has never been understood to permit agencies to forego notice and comment rulemaking simply because the president ordered them to do so. Substantively, the APA requires agencies to provide reasoned explanations for their actions, and forbids rulemakings with preordained outcomes that render the notice-and-comment process meaningless.

The Four Presidential Orders

On April 9, 2025, President Trump issued a large slate of executive actions covering a range of topics, from tariffs to purported national security concerns to defense contracting. Among the actions were four orders and memoranda focused on agency deregulation:

1. Directing the Repeal of Unlawful Regulations. This order builds on a February order that directed all agencies ' including traditionally "independent" agencies like financial regulators ' to review all of their regulations "for consistency with law and Administration policy."

The new order directs that these agency review efforts must prioritize evaluating rules' lawfulness under 10 Supreme Court decisions covering a range of constitutional and statutory topics: Loper Bright v. Raimondo (overruling Chevron); West Virginia v. EPA (articulating the "major questions doctrine"); SEC v. Jarkesy (holding that the targets of certain SEC enforcement actions are entitled to jury trials in federal court); Michigan v. EPA (requiring EPA to consider costs before issuing certain Clean Air Act regulations); Sackett v. EPA (limiting application of the Clean Water Act in the context of wetlands); Ohio v. EPA (applying the APA's arbitrary-and-capricious standard to stay an EPA air regulation); Cedar Point Nursery v. Hassid (holding that a California regulation granting union access to an employer's property constituted a physical taking under the Fifth Amendment); Students for Fair Admissions v. Harvard (invalidating race-conscious university admissions policies); Carson v. Makin (striking down a Maine law that excluded religious schools from a tuition assistance program); and Roman Catholic Diocese of Brooklyn v. Cuomo (blocking New York's COVID-19 restrictions on religious gatherings as violating the First Amendment).

The April 9, 2025 order directs that, following a 60-day review period established in the February order, agencies must "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." Agencies must also submit to the Office of Information and Regulatory Affairs (OIRA) a summary of each regulation that was identified as potentially inconsistent with law or administration policy but was not targeted for repeal.

The order appears to direct agencies to undertake all repeals without notice and comment ' and at minimum puts a heavy thumb on the scale against notice and comment ' by invoking the APA's so-called "good cause" exception (discussed below). Specifically, the order states that "[i]n effectuating repeals of facially unlawful regulations, agency heads shall finalize rules without notice and comment, where doing so is consistent with the [APA's] 'good cause' exception." The order requires that agencies' repeals "shall be accompanied by a brief statement of the reasons that the 'good cause' exception applied." The order concludes that agencies will "have ample cause and the legal authority to immediately repeal unlawful regulations" because "[r]etaining and enforcing facially unlawful regulations is clearly contrary to the public interest," and because "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."

2. Zero-Based Regulatory Budgeting to Unleash American Energy. The second order focuses on energy regulations and takes a different procedural tack. Instead of directing agencies to repeal their rules, the order specifies that covered agencies must insert "sunset" clauses into all of their rules promulgated under a long list of statutes relating to pollution control, natural...