President Trump this week signed multiple orders directing wide swaths of the federal government to eliminate anti-competitive regulations.
The first Executive Order (EO) directs all federal agencies to”review all regulations subject to their authority and identify any that impose anti-competitive restraints,” then provide a proposal to rescind or modify them within 70 days.
The EO provides for the chairman of the Federal Trade Commission (FTC) to seek public input to identify anti-competitive regulations.
“This Executive Order is another element of the President’s sweeping deregulatory agenda that will ensure America remains the most competitive and dynamic economy in the world,” the EO said.
The EO can be found here.
The second EO that President Trump signed directs any relevant federal agency to rescind regulations viewed to be unlawful under 10 recent Supreme Court decisions.
The Supreme Court decisions include:
- Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) overturned the Chevron doctrine. Accordingly, agencies are to repeal any regulation that is not consonant with the “single, best meaning” of the statute authorizing it. Agencies are also to repeal any regulation that was promulgated in reliance on the Chevron doctrine and that could be defended only by relying on Chevron deference.
- West Virginia v. EPA, 597 U.S. 697 (2022) was a landmark ruling applying the Major Questions Doctrine, i.e., the principle that an agency cannot claim to discover vast delegations of power on an important issue in a statutory text that doesn’t clearly provide such authority. (Agencies cannot “seek to hide ‘elephants in mouseholes.’”) Accordingly, agencies must repeal any regulation promulgated in violation of the Major Questions Doctrine.
- SEC v. Jarkesy, 603 U.S. 109 (2024) held that it violates the Seventh Amendment for agencies to adjudicate common-law claims in their in-house courts. Agencies accordingly must repeal any regulation authorizing enforcement proceedings that enable the agency’s courts to impose judgments or penalties that can only be obtained via jury trial in Article III Courts.
- Michigan v. EPA, 576 U.S. 743 (2015) held that it violates the Administrative Procedure Act for an agency to promulgate regulations without properly considering the cost as well as the benefits. Agencies accordingly must repeal any regulation where the costs imposed are not justified by the public benefits, or where such an analysis was never conducted to begin with.
- Sackett v. EPA, 598 U.S. 651 (2023) ended a twenty-year attempt by the EPA to enforce the Clean Water Act against landowners whose property was near a ditch that fed into a creek, which fed into a navigable, intrastate lake. Agencies accordingly must repeal any regulation inconsistent with a properly bounded interpretation of “waters of the United States.”
- Ohio v. EPA, 603 U.S. 279 (2024) struck down an EPA plan under the Clean Air Act that the EPA had adopted after the scientific and policy premises undergirding it had been shown to be wrong. Agencies accordingly must repeal any regulation that does not sufficiently account for the costs it imposes, or for which foundational assumptions have changed and are no longer defensible.
- Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) held that a law that forced landowners to admit union organizers onto their property violated the Takings Clause. Agencies accordingly must repeal any regulation inconsistent with a proper understanding of the Takings Clause, which protects far more than just real estate from being taken by the government without compensation.
- Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) held that “affirmative action” admission programs violate the Equal Protection Clause of the Fourteenth Amendment. Agencies accordingly must repeal any regulation that imposes racially discriminatory rules or preferences.
- Carson v. Makin, 596 U.S. 767 (2022) held that a law excluding religious schools from participating in Maine’s school-voucher program violated the Free Exercise Clause. Agencies accordingly must review their regulations to ensure equal treatment of religious institutions vis-à-vis secular institutions for purposes of funding and access to public benefits.
- Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020) struck down New York’s Covid-era occupancy restrictions on churches and synagogues because they were uniquely harsher than those that applied to “essential” businesses—such as acupuncture facilities. Each agency should review its regulations to ensure at least equal treatment of religious institutions vis-à-vis secular institutions for regulatory purposes.
The EO “directs agencies to revoke these unlawful regulations expeditiously, using the Administrative Procedure Act’s (“APA”) “good cause” exception where appropriate,” according to the text. “Agencies must move quickly to delete illegal regulations from imposing further burdens on the American people.”
The full EO can be found here.
