A Trump administration plan for immediate, wholesale deregulation through executive action likely faces a steep courtroom climb, in what would be a test of the outer limits of presidential authority to direct agencies to ignore existing rules.
Elon Musk and Vivek Ramaswamy, who are advising President-elect Donald Trump, announced the plan to swiftly quash an untold number of regulations in a Nov. 20 Wall Street Journal op-ed. The pair didn’t specify the precise steps they would take to implement their plan, but any sweeping moves likely would be tough to cement.
Musk and Ramaswamy said their deregulatory working group would present a list of illegal federal rules to Trump, who could “immediately pause the enforcement of those regulations and initiate the process for review and rescission” through executive action.
Leaning on a pair of US Supreme Court decisions in West Virginia v. EPA and Loper Bright v. Raimondo, Musk and Ramaswamy said bypassing the regulatory process is a legitimate course correction “to roll back regulations that wrongly bypassed Congress.”
Still, their reasoning likely won’t pass legal muster under ironclad administrative procedure law, legal scholars said. The Trump administration would have to clear several hurdles to succeed, including virtually certain challenges by opponents trying to preserve the rules.
“This is black-letter law,” said Bethany Davis Noll, executive director of New York University’s State Energy & Environmental Impact Center. “We’ve got cases and cases and cases saying this, that they’re going to have to explain why the cost of the rollback, or even a pause, are justified under the statute.”
Explanation Needed
Presidents and agencies often have discretion about when and how to enforce regulations, but they can’t render them ineffective or stay them without going through notice-and-comment rulemaking, said William Buzbee, an administrative law professor at Georgetown University.
“Agencies need to explain the change proposed, provide good reasons for a new policy, and address changes in the world and actions people have taken in reliance on the old regulation proposed for change,” Buzbee said.
The proposal raises a question about executive authority that’s reminiscent of a 2020 Supreme Court decision blocking the Department of Homeland Security from terminating an Obama-era immigration program, said Jonathan Siegel, an administrative law professor at George Washington University.
The justices held that the department’s actions were arbitrary and capricious because it failed to consider key issues about the move, including how to wind down the program and whether to keep parts of it in effect, he said.
That ruling suggests that any Trump pause of an entire slate of regulations—without individualized analyses of the rules at issue and the options open to the government to deal with the determination that they’re illegal—would almost certainly go too far, Siegel said.
Prosecutorial Discretion
The DHS’s termination of the immigration program wasn’t just about non-enforcement, it also dealt with cutting off benefits, said Craig Green, an administrative law professor at Temple University. And the judiciary—which could grow more favorable to Trump policies as he puts more conservative judges on the bench—has been “extremely permissive” in its review of the executive branch’s prosecutorial discretion to halt enforcement, he said.
The Supreme Court said in 1985’s Heckler v. Chaney that an agency’s decision against taking an enforcement action is presumptively unreviewable by courts.
A series of orders that go regulation-by-regulation and justify why the administration is using its discretion to pause enforcement would be difficult to challenge in court, said Kimberly Wehle, an administrative law professor at the University of Baltimore. A sweeping declaration that a mass of regulations will be ignored because they’re allegedly illegal, on the other hand, would be vulnerable to legal challenge, she said.
The claim by Musk and Ramaswamy that Loper Bright and West Virginia v. EPA signal a plethora of existing regulations are illegal grossly misstates the impact of those rulings, Wehle said.
“That’s a legally incorrect justification,” she said.
Uncertain Future
The threat of regulatory uncertainty could disrupt industry planning, NYU’s Noll said.
With an immediate pause, industries across sectors likely face an indefinite holding pattern while courts handle the likely deluge of lawsuits contesting Trump’s executive orders and deregulatory agenda.
When tossing Chevron deference in Loper Bright, the Supreme Court specifically called out whiplash regulatory uncertainty as a risk they hoped would be mitigated with their ruling.
“Under Chevron, a statutory ambiguity, no matter why it is there, becomes a license authorizing an agency to change positions as much as it likes,” Chief Justice John Roberts wrote in the court’s opinion. “By its sheer breadth, Chevron fosters unwarranted instability in the law, leaving those attempting to plan around agency action in an eternal fog of uncertainty.”
The incoming administration’s stated reliance on West Virginia and Loper really works more against them than for them when it comes to exercising sweeping agency action, Noll said.
“The court says it doesn’t want agencies flip flopping all the time,” Noll said.
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