Trump directs agen­cies to fol­low Supreme Court rul­ings, as he con­tin­ues to rein in admin­is­tra­tive state

A new White House memo high­light­ing the top 10 Supreme Court rul­ings fed­er­al agen­cies must fol­low has legal experts opti­mistic about rein­ing in the admin­is­tra­tive state, while some lit­i­ga­tors remain skep­ti­cal the direc­tive will be enforced.

“Any admin­is­tra­tion that real­ly cares about mak­ing sure that they were fol­low­ing the law should be review­ing reg­u­la­tions,” Car­rie Sev­eri­no, pres­i­dent of Judi­cial Cri­sis Net­work, told Fox News Dig­i­tal. “We want a gov­ern­ment that isn’t just tak­ing every bit of pow­er that it can get away with, but one that wants to make sure the con­sti­tu­tion­al lim­its are guard­ed as well, which is why this mem­o­ran­dum is refresh­ing and nov­el in a good way.”

The admin­is­tra­tion issued a mem­o­ran­dum on April 9 requir­ing agen­cies to rescind reg­u­la­tions not in line with 10 recent Supreme Court opin­ions on prop­er admin­is­tra­tive agency func­tions. 

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The memo, titled, “Pres­i­dent Don­ald J. Trump Directs Repeal of Reg­u­la­tions That Are Unlaw­ful Under 10 Recent Supreme Court Deci­sions,” says it is in line with a Feb­ru­ary exec­u­tive order seek­ing to rein in the admin­is­tra­tive state. 

The memo lists var­i­ous Supreme Court cas­es aligned with Trump’s dereg­u­la­to­ry agen­da as well as the admin­is­tra­tion’s efforts to get rid of DEI ini­tia­tives. Among the cas­es list­ed are Lop­er Bright Enter­pris­es v. Rai­mon­do, West Vir­ginia vs. EPA, and Stu­dents for Fair Admis­sions, Inc. v. Pres­i­dent and Fel­lows of Har­vard Col­lege. 

Both Lop­er Bright and West Vir­ginia notably nar­rowed exec­u­tive agen­cies’ author­i­ty in issu­ing rules and reg­u­la­tions affect­ing the Amer­i­can pub­lic. Like­wise, Stu­dents for Fair Admis­sions reject­ed the use of affir­ma­tive action in uni­ver­si­ty admis­sions. 

“The Pres­i­dent is right: agen­cies must repeal reg­u­la­tions that the Supreme Court has deemed unlaw­ful. The Pres­i­dent con­tin­ues to deliv­er on his promis­es to roll back reg­u­la­tions and gov­ern­ment over­reach crip­pling Amer­i­can enter­prise,” White House spokesper­son Tay­lor Rogers told Fox News Dig­i­tal in a state­ment. 

Sev­er­al of the cas­es list­ed are not retroac­tive, mean­ing reg­u­la­tions issued pri­or to these deci­sions being hand­ed down will not be dis­turbed as a result of the opin­ions. How­ev­er, experts say agen­cies can re-eval­u­ate pre­vi­ous rules and reg­u­la­tions under the new stan­dards imposed by the Supreme Court opin­ions.

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“I think that that is good fod­der, a good basis for a lot of agen­cies to go back and look, ‘Where have we cre­at­ed mas­sive reg­u­la­to­ry com­pli­ance bur­dens and struc­tures that mas­sive­ly impact the econ­o­my or soci­ety on the basis of a very thin thread and where can we undo it?’ ” Daniel Huff, senior legal fel­low at the Amer­i­can Path Ini­tia­tive, told Fox News Dig­i­tal. “And we can point to these ele­phants and mouse holes and when it’s reviewed in the future, they will say ‘Yes, that is a good ratio­nale’ and it will be upheld.”

Kara Rollins is a lawyer for the New Civ­il Lib­er­ties Alliance, the non­prof­it orga­ni­za­tion that argued Relent­less Inc. v. Dept. of Com­merce in front of the high court – Loper’s com­pan­ion case that sought to scale back the reach of the admin­is­tra­tive state. Rollins told Fox News Dig­i­tal the “ret­ro­spec­tive look” these agen­cies will take toward pre­vi­ous reg­u­la­tions is not “mis­placed.” 

How­ev­er, Rollins raised con­cerns about the admin­is­tra­tion’s enforce­ment of the direc­tive, not­ing that sev­er­al relat­ed cas­es were already under­way before the Supreme Court issued its rul­ings.

“What hap­pens to these cas­es that are cur­rent­ly active where DOJ or the agency is just tak­ing the wrong posi­tion?” Rollins said. “Who’s look­ing at that? Who’s clear­ing out those cas­es and say­ing, in light of this mem­o­ran­dum, we’ve looked at our lit­i­ga­tion posi­tion and we can no longer sus­tain it? And that’s the real sort of open ques­tion, par­tic­u­lar­ly for lit­i­ga­tors right now.”

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Rollins said that, as a lit­i­ga­tor, her con­cern is agen­cies have yet to change posi­tions when it comes to these Supreme Court opin­ions: “That sort of sig­nals that there is a prob­lem between what the pres­i­dent is say­ing he wants to have hap­pen and what’s being effec­tu­at­ed on the ground.”

In the memo, Trump directs agen­cies to employ the Admin­is­tra­tive Pro­ce­dure Act’s “good cause” excep­tion “where appro­pri­ate,” which allows agen­cies to do away with the usu­al notice-and-com­ment rule­mak­ing process in the inter­est of the pub­lic. The usu­al process requires time for pub­lic input on the pro­posed rule. 

Huff said there is “less of a need” to impose the reg­u­lar notice-and-com­ment rule­mak­ing process giv­en that agen­cies will like­ly be review­ing pre­vi­ous rules rather than pass­ing new ones. 

“They’re not adding new bur­dens. This isn’t new to peo­ple,” Huff said. “Peo­ple already sort of know what’s there and it was there before. And we’re just turn­ing back the clock. We’re putting it back to the way it was. We’re restor­ing the orig­i­nal sta­tus quo.”

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Sev­eri­no said there could be lit­i­ga­tion over the use of the excep­tion despite the fact that the lan­guage is “very broad.” 

“But I do think there are strong argu­ments for it because the laws must keep with the con­sti­tu­tion­al lim­its on gov­ern­ment, and, of course, be in the pub­lic inter­est.”