Trump Administration Cites Loper With New Instructions on Repealing “Unlawful Regulations”

Earlier this week, on April 9, 2025, President Trump issued a new memorandum entitled “Directing the Repeal of Unlawful Regulations.”  The memo, which builds on directions set out in Executive Order 14219 (Feb. 19, 2025), instructs the heads of all executive branch agencies to prepare for repealing “facially unlawful regulations” after April 20, 2025. 

Agencies will moreover prioritize the repeal of regulations that run afoul of ten Supreme Court decisions identified in the memo, including Loper Bright Enterprises v. Raimondo.

Perhaps the most important—and controversial—aspect of the memo, however, is its expectation that agencies finalize regulatory rescissions “without notice and comment,” that is, without giving interested parties the opportunity to voice support or opposition to any given deregulatory action. 

Section 553(b)(B) of the Administrative Procedure Act permits agencies to forego public comment when “impracticable, unnecessary, or contrary to the public interest.”  The new memo arguably anticipates that all potential rescissions will qualify for this “good cause” exception because “[r]etaining and enforcing facially unlawful regulations is clearly contrary to the public interest,” and “repeal is required as a matter of law to ensure consistency” with Supreme Court precedents.  Whether the exception actually applies on these grounds is likely to be the subject of various lawsuits challenging the procedural regularity of any deregulatory actions finalized by the Administration.