Nachmany on Loper’s Good Cause to Deregulate

Eli Nachmany has joined the discussion on the Yale Notice & Comment blog about the interaction between the APA’s good cause exception, Loper Bright, and the Trump Administration’s efforts to root out existing unlawful regulations:

Cary Coglianese and Daniel Walters recently published an interesting Notice & Comment post about the President’s memorandum, suggesting that the move shows “just how unsettled, and how unpredictable, the administrative governance game can be in a post-Loper Bright world.” The authors ask: “Did Loper Bright Also Overturn Notice-and-Comment Rulemaking Procedure?” But this is not the right question. The APA’s “good cause” exception established the authority to bypass notice and comment before Loper Bright came down. The question, then as now, is whether delay would contravene the public interest. Loper Bright and the other cited cases merely help with the process of identifying the regulations that qualify for immediate repeal.

Following the law is any federal agency’s first priority. Indeed, in the words of the Supreme Court, “an agency literally has no power to act … unless and until Congress confers power upon it.” Even if a regulation leads to a policy outcome that some might like, that regulation cannot stand if it is inconsistent with either a law that Congress has passed or binding Supreme Court precedent.

The President’s memorandum directing the repeal of unlawful regulations is a win for the rule of law.