On October 21, the White House Office of Information and Regulatory Affairs issued a memorandum seeking to streamline the review of deregulatory actions.  The memo builds on Executive Orders 14129 and 14219, which direct agencies to repeal ten existing regulations for each new one and to ensure that existing regulations are squarely authorized by statute.  We’ve previously covered EO 14219 and the role Loper Bright plays in that process.

Loper Bright’s corrective to the judiciary’s all-too-common deference to regulatory agencies provides a window through which the Trump Administration can undo decades of agency overreach.  But they must be methodical and follow deregulatory procedures.  The good-cause exception is an alluring shortcut that agencies should use only in the rarest of circumstances, not as a get-out-of-process-free card. Among the guidance OIRA recently provided to agencies are examples of times when they may invoke the Administrative Procedure Act’s (“APA”) good-cause exception to notice-and-comment procedures.  OIRA writes:

The real target of this review is regulations that are, in the agency’s current view, facially unlawful — that is to say, where the unlawfulness is apparent to the agency after reviewing the text of the relevant regulation, the statute it implements, and other sources of law, such as the ten Supreme Court cases identified in the April 9 Memo. If the regulation is unlawful, as — for example — where the rule is inconsistent with the “single, best meaning” of the statute under Loper Bright, direct repeal under the APA’s “good cause” exception is appropriate. Or, if someone challenging the merits of the rescission would be relying on pure legal arguments for their challenge (e.g., arguing that the prior regulation did, in fact, reflect the best meaning of the statute), that fact reinforces the appropriateness of bypassing notice and comment.

As I argued last year, “I am leery of an attempt to invoke an APA good-cause exemption or using interim final rules to expedite deregulation because it risks jeopardizing the entire project. A blanket or cut-and-paste invocation of good cause to avoid notice and comment is too thin a reed to support such a large project when the inevitable barrage of litigation ensues.”

Mr. Valvo is chief policy counsel at Americans for Prosperity Foundation and one of the counsels representing the fishermen in Loper Bright.

On Friday, the Liberty University School of Law’s Supreme Courtroom was packed with students and community guests for the “Liberty Law Review’s” symposium, Loper Bright: A New Era of Administrative Law, which focused on the landmark 2024 Supreme Court case Loper Bright v. Raimondo.

The Hon. Jennifer Walker Elrod, chief judge of the 5th U.S. Circuit Court of Appeals, was the featured speaker at Friday’s event. She helped students and the community understand how the Supreme Court case has impacted the future of administrative law while also showcasing the outstanding work and diligence of “Liberty Law Review” students in contributing legal and educational insights to their community.

The Yale Notice & Comment blog is hosting a symposium on the U.S. Senate’s Post-Chevron Working Group Report.  Senator Eric Schmitt, the driving force behind the working group, has the lead essay in the symposium summarizing the initiative and its importance.

On September 29, 2025, the Tenth Circuit issued its decision in Rangel-Fuentes v. Bondi. The case not only resolves an important question about eligibility for cancellation-of-removal orders under federal immigration law but also provides a roadmap for how courts might approach statutory interpretation—and, specifically, delegations of discretionary agency authority—in the post-Chevron era. 

On September 18th, the Supreme Court requested that the government file a response to the pending cert petition in Poore v. United States, a case raising an interesting Loper Bright implementation question.   

Last week, the Fifth Circuit issued a significant decision in Texas v. EPA, denying Texas’s petition for review of the Environmental Protection Agency’s (“EPA”) disapproval of a State Implementation Plan (“SIP”) under the Clean Air Act (“CAA”).  The case is notable not only for its implications for interstate air pollution regulation, but also for its application of Loper Bright. 

Earlier this month, the Third Circuit released its decision in In re Yellow Corp., a case that started as a high-stakes bankruptcy dispute and ended up involving a challenge to the Pension Benefit Guaranty Corporation’s (“PBGC”) regulations imposing “reasonable conditions” on the use of COVID-19 relief funds.  The Yellow Corp. decision offers another example of Loper Bright implementation and provides insight into how courts are handling cases involving express delegations of “gap-filling” regulatory authority to agencies in the post-Chevron era. 

On September 17, 1787—today, 238 years ago—a momentous event took place in Philadelphia, Pennsylvania. Delegates from the thirteen States, who were assembled in convention, signed our United States Constitution. Although the Constitution was not ratified until the next year, its completion and presentation to the States for adoption marked the beginning of a radical restructuring of our national government.