Bench Memos

Law & the Courts

An Interbranch Commitment to the Rule of Law

What would it look like if an administration actually took the Supreme Court seriously when it was policing the constitutional limits on government? It would look like the presidential memorandum signed by President Trump on Wednesday, which requires federal agencies to rescind regulations that are unlawful under ten recent decisions of the Supreme Court.

The memorandum acknowledges the “massive costs on American consumers and American businesses” inflicted by “[u]nlawful, unnecessary, and onerous regulations.” Unlawful regulations have remained on the books despite recent Supreme Court “decisions that recognize appropriate constitutional boundaries on the power of unelected bureaucrats and that restore checks on unlawful agency actions.” The following ten decisions were cited for particular attention in evaluating the lawfulness of existing regulations:

The memorandum follows Executive Order 14219, issued on February 19, which directed department and agency heads to identify unlawful and potentially unlawful regulations within 60 days and to commence plans for their repeal. To expedite repeal, the memorandum invoked the Administrative Procedure Act’s “good cause” exception to notice-and-comment rulemaking. That exception, of course, reinforces what should already be obvious—that agencies may not allow an unlawful regulation to remain on the books. It is noteworthy as well that all but one of the ten cited cases were decided since October 2020, when the current originalist Court majority was set. The presidential memorandum is commendable, and this necessary jolt to often intransigent bureaucrats would not have been possible without a majority of the Supreme Court that follows the rule of law.

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