President-elect Donald Trump’s announcement of Elon Musk and Vivek Ramaswamy’s “Department of Government Efficiency” has put a sharp focus on plans to unwind Biden administration regulations on the environment, the economy and more. Every interest group in Washington has prepared a wish list of regulations they hope to see repealed or spared. But repealing and replacing regulations is not as simple as signing a few executive orders.
Deregulation can be just as cumbersome as regulation, especially if the new administration wants those efforts to survive inevitable legal challenges under the Administrative Procedure Act. For those closely following Trump’s deregulatory agenda, there are several key issues to watch.
As soon as Trump takes office, he will quickly freeze the regulatory process until his appointees get situated. This usually entails a memo from the incoming chief of staff directing federal agencies not to submit new rules for publication in the Federal Register until they are reviewed and approved by a Trump appointee. This “freeze” memo also directs agencies to withdraw submitted but yet-unpublished rules and to postpone by 60 days the effective date of rules not yet in effect.
This traditional move enforces the norm that there is only one president at a time, ensuring that President Biden’s regulatory control ends with his term. But it does not allow Trump to reach back and unwind duly promulgated regulations. For that, he will rely on a different set of tools: the Congressional Review Act, the regulatory process itself and litigation under the Administrative Procedure Act.
Before Trump first took office, the Congressional Review Act of 1996 was on the books but was rarely used. Now it is in its heyday. In simple terms, the CRA allows Congress to disapprove federal regulations by passing a resolution that is not subject to the Senate filibuster but still subject to the president’s veto. It is thus most powerful when the same party controls the White House and Congress, as Republicans did in 2017 and will again this year. Once Congress disapproves a regulation, the CRA dictates that it “may not be reissued in substantially the same form.”
There are limits, however, on using the CRA to unwind regulations. With narrow exceptions, Congress can reach back only to disapprove regulations promulgated in the last several months of the previous administration. Congress will also have a limited window in early 2025 to introduce disapproval resolutions and move them through the process, which burns precious floor time. Congress will use it only for high-priority targets.
But Trump will want to unwind more regulations than the CRA can reach. In most cases, he will use the same rulemaking process to repeal regulations as Biden used to implement them. In 2009, the Supreme Court held in FCC v. Fox Television that federal agencies are generally free to repeal or replace old rules, so long as they acknowledge the change and provide a reasoned justification for the new approach. But interested parties also maintain the same right to sue and challenge a deregulatory action under the Administrative Procedure Act.
To survive judicial scrutiny, the deregulatory action and the agency’s justification cannot be unconstitutional, contrary to statute or arbitrary and capricious. As a prime example, in DHS v. Regents in 2020, the Supreme Court invalidated the Trump administration’s repeal of Deferred Action for Childhood Arrivals — not because it disagreed with the attorney general’s conclusion that it was unlawful, but because the acting DHS secretary did not adequately explain the rescission, making it “arbitrary and capricious.”
This time around, the Trump administration will still act to repeal regulations it considers unlawful, but it is less likely to rely solely on that rationale. Expect deregulatory actions to address additional considerations, even when the primary justification for repeal is that a regulation exceeded the agency’s statutory authority. The incentive to do so is even stronger after the Supreme Court’s recent decision in Loper Bright v. Raimondo, since federal courts will no longer afford so-called Chevron deference to a federal agency’s legal interpretation of its own statutory authority.
The final tool is the Administrative Procedure Act itself in cases where private parties have already sued (or will soon sue) to challenge Biden-era regulations. In some instances, the law will authorize agencies to delay the effective date of regulations pending judicial review. But there are unsettled legal questions, such as whether the law allows agencies to delay already-effective rules and what level of justification agencies need to give for the delay.
In many cases, we can expect the Trump administration to switch positions and agree with the challengers that the prior rule was invalid for one reason or another. The first Trump administration switched positions before the Supreme Court on class action waivers and other regulatory issues in 2017, and the Biden administration made similar moves in 2021.
A switch in position is generally not enough on its own for a court to vacate the rule. But particularly in cases where the court has already ruled against a regulation and the Biden administration has a pending appeal, the Trump administration may be able to effectively end the regulation by dropping the appeal.And many courts will pause their cases over Biden-era rules to give the Trump administration time to reconsider them.
Trump has the tools necessary to pursue his deregulatory agenda. It will take a thoughtful and sustained effort to see it through.
John Moran is a partner in the Washington, D.C., office of McGuireWoods LLP. He served on the first Trump presidential transition, as associate White House counsel and as a senior official at the Department of Justice.
