The deregulation machine hits bureaucratic resistance

A new White House Office of Management and Budget (OMB) memo, “Streamlining the Review of Deregulatory Actions,” poses an ambitious test: can agencies use the “good cause” provisions of the Administrative Procedure Act (APA)—typically used to justify adopting rules without prior public notice-and-comment—to instead repeal rules that are now legally indefensible?

Several Trump administration executive orders, including “Unleashing Prosperity Through Deregulation” (EO 14192) and its companion “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative” (EO 14219), set the stage. A subsequent memorandum, “Directing the Repeal of Unlawful Regulations,” highlighted the sweeping significance of Supreme Court rulings such as West Virginia v. EPA (2022) and Loper Bright (2024), instructing agencies to treat regulations inconsistent with those precedents as “facially unlawful.”

Agencies, however, have been slow to follow through, with few invoking “good cause” to roll back unlawful rules. The new “Streamlining” memo laments that “to date, agencies do not appear to be fully maximizing their energy in carrying out these directives.”

As I noted in a new Forbes article, a handful of exceptions exist. The Council on Environmental Quality’s repeal of NEPA regulations, for instance, was a significant interim final rule. Lesser examples include the Treasury Department’s deletion of obsolete minor rules and the FCC’s “Delete, Delete, Delete” initiative, which has so far scrubbed remnants like telegraph and phone booth rules of no modern consequence.

Instead—while new rulemaking has admirably frozen in 2025 and important major rule rewrites are indeed underway—the sweeping flash-reversals envisioned by Trump and OMB have yet to materialize. The most substantial rollbacks so far have come from the 16 Congressional Review Act resolutions overturning Biden-era rules, not from the executive orders themselves.

Using “good cause” to add major regulatory requirements, rather than for minor housekeeping, turns out to be fairly uncommon. In recent years, it has been invoked primarily for emergencies, for good or ill, such as during the COVID-era eviction moratoria, vaccine mandates, and pandemic guidance.

At other times, agencies issue interim final rules without public input in response to court orders. The administration now seems to extend that logic: if agency rules can be reinforced (or limited) without full notice-and-comment under judicial compulsion, there may be even greater justification for removing those deemed facially unlawful by the Supreme Court, especially when further delay would be “contrary to the public interest.”

Watching this play out should be fascinating for the wonks.

Granted, even as “good cause” removals of existing rules get tested, most rulemaking portfolios benefit from an extensive public notice-and-comment process. My Competitive Enterprise Institute colleagues Marlo Lewis and Ben Lieberman, for example, have weighed in extensively on the likes of the Department of Energy’s rescissions of certain greenhouse gas reporting requirements and the Department of Transportation’s reaffirmation of federal preemption in vehicle fuel efficiency standards, and have spared the public the abuses of costly, nettlesome, and counterproductive appliance energy conservations standards.

In this new effort to kickstart deregulatory activity, the “Streamlining” memo gives OMB just 14 days to review such repeals and hasten timelines for rules subject to the standard notice-and-comment procedures of the sort my colleagues rigorously address. We won’t see what materializes until after the shutdown ends, but law firm newsletters warned affected parties to expect speedier regulatory dockets. 

Many have long discussed modernizing the Administrative Procedure Act. If courts reject the deregulatory use of “good cause” entirely, the entire practice of interim final rules may face new scrutiny—along with the greater concern of agencies disregarding substantive comments raising substantive constitutional and takings concerns during notice-and-comment rulemakings.

This experiment is part of the broader effort to limit administrative power and restore congressional accountability. But it does not diminish the importance of creating robust notice- and-comment rule records—even if agencies ignore them—because those comments can prove decisive in future legal challenges Supreme Court rulings that may, in turn, expand the reach of certain “good cause” instant revocations.

In short: if the administrative state can bypass procedure to grow, it should be able to do the same to shrink. That’s just part of the process, the end game of which is the elimination of the administrative state to restore constitutional order.

For more, see: “Deregulation Frustration: Is ‘Good Cause’ On Pause?” Forbes.