President Donald Trump is proudly waging a war on federal regulations with a series of tactics that could soon land in the center of high-stakes court battles.
Trump’s critics have been dismayed by the president’s early assault on the federal regulatory apparatus, with some legal experts expressing confidence that the administration’s moves won’t hold up against legal challenges.
But in regulatory rollbacks, as well as other arenas, Trump’s second-term team has signaled that it’s willing to attempt massive changes to how the executive branch operates, then take its chances in court.
“It’s clear that they’re trying to push as far as they can on legal boundaries,” said Myron Ebell, who led Trump’s EPA transition team after the 2016 election.
“Instead of restraining their deregulatory push and saying, ‘Oh, we’d better not go too far,’” Ebell said, “I think now the idea is, ‘Let’s overdo it and see what the court and the Congress do to limit it.’”
Trump last week issued a series of directives aimed at scaling back regulations covering everything from showerheads to endangered species as part of his pledge to enact the “most aggressive regulatory reduction” in the country’s history.
And the push to ax regulations is just beginning.
Federal agencies are facing an April 20 deadline to send the White House lists of regulations targeted for cuts or modifications. Trump demanded those lists in a Feb. 19 executive order saying he planned to “commence the deconstruction of the overbearing and burdensome administrative state.”
Trump also directed agencies to “preserve their limited enforcement resources by generally de-prioritizing actions to enforce regulations that are based on anything other than the best reading of a statute and de-prioritizing actions to enforce regulations that go beyond the powers vested in the Federal Government by the Constitution.”
Driving the deregulatory push are Russ Vought, the head of the White House Office of Management and Budget, and Jeff Clark, who is serving as the acting head of the White House’s regulatory review office. Clark became a nationally known figure amid accusations that he attempted to help Trump subvert the 2020 presidential election.
Clark, who leads the powerful Office of Information and Regulatory Affairs, touted the deregulation agenda on social media earlier this month.
Trump’s February order directed agency heads to provide the head of OIRA with their lists of rules deemed inconsistent with the law and administration policy. Clark was directed to work with agency heads to develop a plan to revoke or modify those rules, as appropriate. The administration has also launched a new website asking the public to send in their suggestions for rule cuts.
Court fights ahead?
Several aspects of Trump’s reg-crushing quest so far have drawn scrutiny from legal experts, who warn that the moves will draw court challenges.
The Trump team’s deregulatory road map is “a house of cards,” said Richard Revesz, who served as the head of the White House regulatory office during the Biden administration.
Legal experts say the Trump administration appears to be testing the Administrative Procedure Act, a law that governs how agencies issue regulations. Notably, that law allows the public to comment on proposed rules before they’re finalized.
A recent Trump order directing the reversal of a Biden-era efficiency rule on showerheads includes a line stating, “Notice and comment is unnecessary because I am ordering the repeal.”
The White House did not immediately respond to a request for comment about its deregulatory approach
Trump also issued orders directing energy and environmental agencies to “sunset” certain regulations and a memo directing agencies to repeal existing rules that don’t align with a series of recent Supreme Court decisions.
“In all these cases, they try to bypass notice and comment rulemaking, which is very troubling and illegal,” Revesz said. If the administration wants a deregulatory policy that’s “based on the aggregation of illegal moves — if that was the goal, it would look a lot like this,” he said.
The Trump administration also appears eager to curb the government’s regulatory reach by limiting enforcement.
In his February executive order, Trump directed agency heads to “determine whether ongoing enforcement of any regulations identified in their regulatory review is compliant with law and Administration policy.”
He also told those agency leaders to work with the White House budget office to “direct the termination of all such enforcement proceedings that do not comply with the Constitution, laws, or Administration policy.”
That should be done on a “case-by-case basis and as appropriate and consistent with applicable law,” the order says.
In light of the Trump administration’s enforcement approach, experts are revisiting a 1985 Supreme Court decision, Heckler v. Chaney, authored by then-Associate Justice William Rehnquist.
That case involved prisoners sentenced to death by lethal injection challenging a Food and Drug Administration refusal to take enforcement actions. The ruling said the court didn’t have the authority to review the agency’s decision not to take an enforcement action.
The White House plans to rely on that decision as part of a strategy to stop enforcing rules as it goes through the process of repealing them, The New York Times reported, citing people familiar with the discussions.
“My prediction is that basically deciding not to enforce regulations at this broad a scale will go badly for them,” Revesz said.
It would be a “superficial and wrong” reading of that Supreme Court ruling to interpret it as giving the government broad authority to “not enforce violations of any of a whole bunch of regulations,” Revesz said.
Agencies “clearly have discretion” when it comes to enforcement, said Brett Hartl, government affairs director at the Center for Biological Diversity.
But if an agency were to issue a directive saying, “‘We’re just not going to enforce the [rules] we don’t agree with across the board,’ that may be illegal,” Hartl said.
