Executive Summary
On April 9, 2025, President Trump issued four executive orders and presidential memoranda directing a range of deregulatory actions by agencies across the executive branch. These orders are remarkable in their scope, directing agencies (even independent ones) to review and revoke an expansive set of regulations across numerous subjects. But the orders are also remarkable in the procedures they compel. Two orders direct (or at the least strongly encourage) the relevant agencies to revoke regulations without going through the notice-and-comment process that is generally required under the Administrative Procedure Act (APA). The orders command these unusual steps using novel theories — including that the president himself, as opposed to the agency, can deem notice and comment unnecessary. Another of the orders directs numerous agencies to insert "sunset clauses" into energy-related regulations en masse, seemingly without advance notice and comment or an individualized assessment of the consequences of phasing out particular rules.
Litigants will likely challenge rescissions and sunsetting actions directed in these orders as both procedurally and substantively invalid under the APA. Procedurally, the APA has never been understood to permit agencies to forego notice and comment rulemaking simply because the president ordered them to do so. Substantively, the APA requires agencies to provide reasoned explanations for their actions, and forbids rulemakings with preordained outcomes that render the notice-and-comment process meaningless.
The Four Presidential Orders
On April 9, 2025, President Trump issued a large slate of executive actions covering a range of topics, from tariffs to purported national security concerns to defense contracting. Among the actions were four orders and memoranda focused on agency deregulation:
1. Directing the Repeal of Unlawful Regulations. This order builds on a February order that directed all agencies — including traditionally "independent" agencies like financial regulators — to review all of their regulations "for consistency with law and Administration policy."
The new order directs that these agency review efforts must prioritize evaluating rules' lawfulness under 10 Supreme Court decisions covering a range of constitutional and statutory topics: Loper Bright v. Raimondo (overruling Chevron); West Virginia v. EPA (articulating the "major questions doctrine"); SEC v. Jarkesy (holding that the targets of certain SEC enforcement actions are entitled to jury trials in federal court); Michigan v. EPA (requiring EPA to consider costs before issuing certain Clean Air Act regulations); Sackett v. EPA (limiting application of the Clean Water Act in the context of wetlands); Ohio v. EPA (applying the APA's arbitrary-and-capricious standard to stay an EPA air regulation); Cedar Point Nursery v. Hassid (holding that a California regulation granting union access to an employer's property constituted a physical taking under the Fifth Amendment); Students for Fair Admissions v. Harvard (invalidating race-conscious university admissions policies); Carson v. Makin (striking down a Maine law that excluded religious schools from a tuition assistance program); and Roman Catholic Diocese of Brooklyn v. Cuomo (blocking New York's COVID-19 restrictions on religious gatherings as violating the First Amendment).
The April 9, 2025 order directs that, following a 60-day review period established in the February order, agencies must "immediately take steps to effectuate the repeal of any regulation, or the portion of any regulation, that clearly exceeds the agency's statutory authority or is otherwise unlawful." Agencies must also submit to the Office of Information and Regulatory Affairs (OIRA) a summary of each regulation that was identified as potentially inconsistent with law or administration policy but was not targeted for repeal.
The order appears to direct agencies to undertake all repeals without notice and comment — and at minimum puts a heavy thumb on the scale against notice and comment — by invoking the APA's so-called "good cause" exception (discussed below). Specifically, the order states that "[i]n effectuating repeals of facially unlawful regulations, agency heads shall finalize rules without notice and comment, where doing so is consistent with the [APA's] 'good cause' exception." The order requires that agencies' repeals "shall be accompanied by a brief statement of the reasons that the 'good cause' exception applied." The order concludes that agencies will "have ample cause and the legal authority to immediately repeal unlawful regulations" because "[r]etaining and enforcing facially unlawful regulations is clearly contrary to the public interest," and because "notice-and-comment proceedings are 'unnecessary' where repeal is required as a matter of law to ensure consistency with a ruling of the United States Supreme Court."
2. Zero-Based Regulatory Budgeting to Unleash American Energy. The second order focuses on energy regulations and takes a different procedural tack. Instead of directing agencies to repeal their rules, the order specifies that covered agencies must insert "sunset" clauses into all of their rules promulgated under a long list of statutes relating to pollution control, natural resource management, and energy. Those clauses must provide that the rule becomes ineffective on a specified date, unless the agency extends that deadline following public comment.
In particular, for existing regulations, the order directs that "[t]o the extent consistent with applicable law," each covered agency must issue a "sunset rule" for "each of their Covered Regulations" that "inserts a Conditional Sunset Date" of one year after the effective date of the relevant sunset rule. Upon the sunset date, the agency must treat the regulation "as ceasing to be effective ... for all purposes"; an "agency shall not take any action to enforce such an ineffective regulation and, to the maximum extent permitted by law, shall remove it from the Code of Federal Regulations." Prior to the rule's expiration, the agency must provide an opportunity for public comment "on the costs and benefits of each regulation," and may extend the date of expiration "if the agency finds an extension warranted." Agencies must add these sunset provisions to covered rules by September 30, 2025.
For new regulations, the order directs that "to the maximum extent consistent with law," the agency must include a sunset date "that is not more than 5 years in the future." The Director of the Office of Management and Budget (OMB) can "exempt a new regulation or amendment from the requirements of this paragraph if he determines that the new regulation or amendment has a net deregulatory effect."
This order does not state that agencies must issue these sunset rules without first undertaking notice and comment. Section 4(d), however, combined with the ordinary timelines for public comment, suggests that advance notice and comment is not contemplated. Although sunset rules must "offer the public an opportunity to comment on the costs and benefits of each regulation ... prior to a rule's expiration," the order states that a request for comment "does not automatically extend" the sunset date. Thus, while not entirely clear, the order implies that the sole opportunity for public comment on a rule's repeal will come after the agency has inserted a sunset clause into the rule, and that the rule will sunset on the originally specified date unless and until the agency finds extension warranted.
3. Maintaining Acceptable Water Pressure in Showerheads. The narrowest of the four, this order focuses specifically on regulatory definitions of the term "showerhead" promulgated by the U.S. Department of Energy. The order directs the Secretary of Energy to rescind the regulatory definition without undertaking notice and comment. Unlike the "unlawful regulations" order, this order does not reference the APA's good cause standard. Rather, the order states simply: "Notice and comment is unnecessary because I am ordering the repeal." The Department of Energy has since made the revocation.1
4. Reducing Anti-Competitive Regulatory Barriers. This order initiates a wide-ranging regulatory review by all federal agencies, including independent agencies, to eliminate "anti-competitive regulations." Unlike the other orders, this one does not command revocation or periodic review and sunsetting of any rules, but rather requires agencies to "complete a review of all regulations subject to their rulemaking authority" and identify for potential future revocation those that limit competition in various ways. Agencies must submit the rules they identify as anticompetitive to the Chairman of the Federal Trade Commission, who — in consultation with the Attorney General, the head of the National Economic Council, and relevant agency heads — must provide the OMB Director with "a consolidated list of regulations that warrant rescission or modification in light of their anti-competitive effects, along with recommended modifications."
Notice and Comment, and Presidential Commands to Skip It
As noted, under two of the April 9, 2025 orders, agencies performing their revocations are directed or encouraged to do so without following the notice-and-comment rulemaking procedures that are generally required under the APA. And another of the orders seems to contemplate that agencies will insert sunset clauses into their rules without a prior opportunity for notice and comment.
The APA (specifically, 5 U.S.C. § 553) generally requires agencies to provide public notice and an opportunity to comment before issuing a "rule" (as defined in § 551). It is well established that an agency action repealing, sunsetting, or delaying the effective date of a prior rule is itself a "rule."2 Thus, when agencies revoke rules, they generally must follow the notice-and-comment procedures required under the APA.
The APA, however, contains several exceptions to its notice-and-comment requirements, including exceptions that could cover particular deregulatory actions.
First, the APA exempts several types and topics of agency actions from its notice-and-comment requirements. The statute exempts "interpretative rules"; "general statements of policy"; "rules of agency organization, procedure, or practice"; and actions that are not rules at all (like adjudications).3 It also exempts rules addressing military or foreign affairs, agency management or personnel, public property, loans, grants, benefits, or contracts. (Several agencies have issued regulations known as "Richardson waivers" that nonetheless require notice and comment for rules on these topics — though in a recent abrupt reversal, the U.S. Department of Health and Human Services eliminated its Richardson waiver, and other agencies could conceivably do the same.) The boundaries of those categories are hazy and frequently contested, but suffice it to say, many agency actions — things like non-binding guidance documents — may be revoked or sunsetted without notice-and-comment.
Second, as noted, the APA has a "good cause" exception. Notice and comment is not required "when the agency for good cause finds" that notice and comment are "impracticable, unnecessary, or contrary to the public interest."4 In the many cases where agencies have tried to duck the (often onerous) notice-and-comment processes, courts have said that this exception is "narrowly construed and only reluctantly countenanced."5
Absent from the APA, however, is any notice-and-comment exception that depends on findings by the president. This absence is notable: Another rulemaking-related statute, the Congressional Review Act, expressly provides that major rules may take effect immediately (notwithstanding the typical 60-day delay) if the president makes certain findings.6 And to our knowledge, no presidential order has previously directed an agency to forgo notice and comment under the APA.
Courts have also inferred from the structure of the APA that the notice-and-comment process is designed to have a meaningful impact on agency decision-making.7 As a consequence, agencies cannot enter the notice-and-comment process with an "unalterably closed mind" that would prevent public comments from influencing the agency's formulation of a final rule.8
Looking Ahead to Legal Challenges
These new orders call for widespread deregulatory activity across a range of subjects, from health and human safety measures, to emissions controls, to economic regulations, to government contracts.9 No segment of the federal government is untouched; the orders reach even agencies that traditionally were viewed as independent, including financial regulators like the U.S. Securities and Exchange Commission. The sweeping theory of presidential authority underlying these orders also raises questions about whether future presidential orders might go even further, possibly by directing agencies to make particular findings or issue particular rules.
When these orders ultimately do prompt revocations and sunsetting actions, they also will likely prompt litigation by companies, organizations, and individuals that benefit from existing regulations. Revocations and sunset rules might be challenged on multiple grounds.
Revocations. If an agency revoked a rule solely for the reason that it found the rule inconsistent with one of the Supreme Court decisions identified in the "unlawful regulations" order, plaintiffs could challenge that finding of illegality as erroneous.10 Even if a court agreed with the agency that at least part of the rule was unlawful, it still could find the revocation to be arbitrary and capricious,11 particularly if the agency had options short of total revocation that could address that illegality.12 Revocation of a particular rule could violate other statutory commands, as well — for example, if Congress had required the agency to issue that particular rule or a rule on that topic.
Revocations could also face procedural challenges if they followed the president's direction (or encouragement) to forgo notice and comment.13 As noted, the APA's good-cause provision requires that "the agency for good cause finds" notice and comment unnecessary, impracticable, or contrary to the public interest.14 Agency revocations that rely exclusively on the executive order, or with pro forma and unreasoned analyses, could thus be vulnerable to arguments that they are invalid under § 553. Moreover, the rationales offered in the order to support good cause could themselves be vulnerable even if genuinely adopted by an agency.15 And even if an agency provided notice and an opportunity for comment before revoking a particular rule, litigants likely would invoke the "unalterably closed mind" doctrine, contending that a presidential order commanding agencies to revoke certain rules makes any notice-and-comment procedures preceding that directed outcome meaningless.
Beyond rule-by-rule defenses, the administration might raise a more fundamental constitutional argument: that the president under Article II of the Constitution has absolute control over federal agencies' exercise of executive power, even in contexts (like under the APA) where Congress has conferred power on agencies rather than the president, and has imposed procedural restrictions on agencies' exercise of that power. This argument — a species of the "unitary executive theory" — may underlie President Trump's showerhead-specific executive order, which asserts not that the APA exempts the agency's revocation, but rather that "[n]otice and comment is unnecessary because I am ordering the repeal."
While the Supreme Court has embraced increasingly strong versions of presidential control in some constitutional contexts, like the removal of federal agency-heads,16 it has not adopted this absolutist vision of Article II, which seemingly would permit the president to personally override the APA in any rulemaking, and would depend on the novel proposition that the APA's procedural restrictions are unconstitutional. (Notably, the recently issued rule effectuating the showerheads order did not rely exclusively on the presidential-control rationale; the U.S. Department of Energy also supplied a good-cause finding, suggesting that at least some administration lawyers saw risk in relying solely on a presidential command.)17
Sunset rules. Agency "sunset rules" issued pursuant to the "Unleash American Energy" order also may face challenges. As noted, under existing precedent, an agency's decision to sunset a rule is itself a rule subject to all of the APA's ordinary requirements and judicial-review procedures. Thus, if a particular sunset rule offered little to no reasoning specific to the rule being modified, it could be subject to challenge as arbitrary and capricious, just like any other final agency action. A sunset rule could be especially vulnerable if it did not consider the public's "serious reliance interests" in the existing policy before sunsetting it.18
The sunsetting process could also present a host of difficult legal and practical issues given complex regulatory timelines and the frequent interrelationships between agency rules. Agencies and courts, for example, may be called on to resolve confusion if a rule that remained in effect nevertheless cross-referenced a sunsetting rule.
Procedurally, an agency's failure to provide notice and an opportunity for comment prior to insertion of a given sunset clause could also be vulnerable. Courts in related contexts have rejected that the opportunity to comment after the effective date of a new rule satisfies the APA's requirements.19 Because the sunset provisions contemplated in the order will nullify existing rules by default, unless and until the agency decides to extend the deadline, litigants may argue that the sunset provision itself must be preceded by notice and comment (subject to the APA exceptions described above).
Footones
1. See U.S. Department of Energy, Final Rule, Repeal of the Definition of Showerhead (Apr. 11, 2025).
2. See, e.g., Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir. 2017).
3. 5 U.S.C. §§ 551(4)-(5), 553(b).
4. 5 U.S.C. § 551(b)(B).
5. Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012).
6. 5 U.S.C. § 801(c).
7. Natural Resources Defense Council v. EPA, 859 F.2d 156, 194 (D.C. Cir. 1988) ("agencies proceeding by informal rulemaking should maintain minds open to whatever insights the comments produced by notice under § 553 may generate.").
8. Ass'n of Nat. Advertisers, Inc. v. FTC, 627 F.2d 1151, 1171 (D.C. Cir. 1979).
9. Also on April 9, 2025, President Trump issued an executive order titled "Modernizing Defense Acquisitions and Spurring Innovation in the Defense Industrial Base," which calls for the elimination or revision of "any unnecessary supplemental regulations," including those in the Financial Management Regulation and Defense Federal Acquisition Regulation Supplement. And on April 15, 2025, President Trump issued an executive order titled "Restoring Common Sense to Federal Procurement," calling for a "comprehensive reform of the [Federal Acquisition Regulation (FAR)]." According to that executive order, "the FAR should contain only provisions required by statute or essential to sound procurement, and any FAR provisions that do not advance these objectives should be removed."
10. See Prill v. NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985) ("an agency decision cannot be sustained ... where it is based not on the agency's own judgment but on an erroneous view of the law").
11. 5 U.S.C. § 706(2)(A) (courts shall "hold unlawful and set aside agency action" found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").
12. See DHS v. Regents of the University of California, 591 U.S. 1, 30 (2020) ("deciding how best to address a finding of illegality moving forward can involve important policy choices," and DHS failed to adequately consider those policy choices after determining that DACA's immigration benefits were unlawful).
13. 5 U.S.C. § 706(2)(D) (courts shall "hold unlawful and set aside agency action" found to be "without observance of procedure required by law").
14. 5 U.S.C. § 553(b)(B) (emphasis added).
15. See Mack Trucks, 682 F.3d at 94-95 (limiting the "public interest" prong of the good-cause standard to situations where notice itself would defeat the agency's policy goal, and limiting the "unnecessary" prong to rules that are "routine determination[s], insignificant in nature and impact, and inconsequential to the industry and to the public").
16. Seila Law LLC v. CFPB, 591 U.S. 197 (2020) (in holding that Congress cannot insulate the CFPB Director from at-will removal, explaining that "individual executive officials may wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President").
17. See U.S. Department of Energy, Final Rule, Repeal of the Definition of Showerhead, 90 Fed. Reg. 15647 (Apr. 11, 2025).
18. Regents of the University of California, 591 U.S. at 30.
19. Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141 (D.C. Cir. 1992) (rejecting the agency's argument that notice and comment prior to an immediately-effective "interim" rule were unnecessary, even though agency simultaneously published notice and requested comment on whether to finalize that interim rule).
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