Labor & Employment Law Daily Wrap Up, WHITE HOUSE NEWS—Presidential memo directs repeal of ‘unlawful regulations’ without notice and comment, (Apr 11, 2025)
Organizations Mentioned:Cedar Point Nursery
By Brandi O. Brown, J.D.
Priority should be given, the memo says, to evaluation of regulations’ lawfulness under a list of 10 U.S. Supreme Court decisions, including Loper Bright and Cedar Point Nursery.
Earlier this week, the White House issued a memorandum to executive department and agency heads with the subject heading “Directing the Repeal of Unlawful Regulations.” The Oval Office also issued a fact sheet regarding the memo.
Supreme Court decisions. The memo, issued by President Trump contends:
“In recent years, the Supreme Court has issued a series of decisions that recognize appropriate constitutional boundaries on the power of unelected bureaucrats and that restore checks on unlawful agency actions. Yet, despite these critical course corrections, unlawful regulations—often promulgated in reliance on now-superseded Supreme Court decisions—remain on the books.”
Then, referencing Executive Order 14219, issued on February 19, 2025, which instituted a “deregulatory initiative” and, according to the memo, directed recipients to identify “certain categories of unlawful and potentially unlawful regulations” and “begin plans to repeal them,” the memo added a clarification. “This review-and-repeal effort shall prioritize, in particular,” the new memo states, “evaluating each existing regulation’s lawfulness” under certain U.S. Supreme Court decisions, including: Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024); West Virginia v. EPA, 597 U.S. 697 (2022); SEC v. Jarkesy, 603 U.S. 109 (2024); Michigan v. EPA, 576 U.S. 743 (2015); Sackett v. EPA, 598 U.S. 651 (2023); Ohio v. EPA, 603 U.S. 279 (2024); Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021); Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023); Carson v. Makin, 596 U.S. 767 (2022); and Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020).
No notice and comment. The memo then indicates the administration’s intention to do away with notice and comment on the changes made:
“In effectuating repeals of facially unlawful regulations, agency heads shall finalize rules without notice and comment, where doing so is consistent with the “good cause” exception in the Administrative Procedure Act. That exception allows agencies to dispense with notice-and-comment rulemaking when that process would be “impracticable, unnecessary, or contrary to the public interest.” Retaining and enforcing facially unlawful regulations is clearly contrary to the public interest. Furthermore, 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. Agencies thus have ample cause and the legal authority to immediately repeal unlawful regulations.”
Takings Clause “far more than real estate.” Several of the listed Supreme Court decisions have either direct or indirect impacts on employment matters. In Cedar Point Nursery v. Hassid, the High Court struck down a California union access rule, which restricted the ability of employers to exclude union organizers from the employer’s property, under certain circumstances. The fact sheet describes it as holding “that a law that forced landowners to admit union organizers onto their property violated the Takings Clause.” It adds: “Agencies accordingly must repeal any regulation inconsistent with a proper understanding of the Takings Clause, which protects far more than just real estate from being taken by the government without compensation.” For now, it is unclear what “far more than just real estate being taken by the government” means.
Chevron deference. In Loper Bright Enterprises v. Raimondo, decided in June 2024, a 6-3 majority of the Supreme Court overruled the Chevron doctrine. So, for example, in a case being argued before the Eighth Circuit in 2024, states challenging certain provisions of the Pregnant Workers Fairness Act rule, 89 Fed. Reg. 29096, argued that no deference was due to the EEOC’s interpretation, citing Loper Bright, and that the PWFA’s statutory language did not empower the EEOC to impose certain requirements. The Eighth Circuit recently concluded that the states had standing to challenge the regulation.
Regarding Loper and the overturning of the Chevron doctrine, the Fact Sheet states: “Accordingly, agencies are to repeal any regulation that is not consonant with the “single, best meaning” of the statute authorizing it. Agencies are also to repeal any regulation that was promulgated in reliance on the Chevron doctrine and that could be defended only by relying on Chevron deference.”
Affirmative action. In Students for Fair Admissions v. Harvard, the Court struck down race-conscious affirmative action university admissions programs. Commentators and politicians quickly linked the decision to employment scenarios, such as DEI programs and preferences in employment and contracting. The Fact Sheet states: “Agencies accordingly must repeal any regulation that imposes racially discriminatory rules or preferences. As the Court said, ‘[e]liminating racial discrimination means eliminating all of it.’”
ALJs. In SEC v. Jarkesy, the Court ruled that the SEC’s use of ALJs to impose financial penalties violated the Seventh Amendment right to a jury trial, which commentators noted could have implications on OSHA and other agencies that use ALJs. As described by the Trump administration, the Court “held that it violates the Seventh Amendment for agencies to adjudicate common-law claims in their in-house courts. Agencies accordingly must repeal any regulation authorizing enforcement proceedings that enable the agency’s courts to impose judgments or penalties that can only be obtained via jury trial in Article III Courts.”
Major questions. Some of the other decisions listed may also have employment-related implications, even if not apparent at first blush. In West Virginia v. EPA, for example, the Court invoked the “major questions doctrine” in an EPA case, but it used an OSHA hypothetical for comparison to the EPA’s actions, noting that OSHA’s actions would also be scrutinized under the Major Questions Doctrine. The Fact Sheet describes it as a “landmark ruling applying the Major Questions Doctrine, i.e., the principle that an agency cannot claim to discover vast delegations of power on an important issue in a statutory text that doesn’t clearly provide such authority. (Agencies cannot “seek to hide ‘elephants in mouseholes.’”) Accordingly, agencies must repeal any regulation promulgated in violation of the Major Questions Doctrine.”
In Michigan v. EPA, according to the Fact Sheet, the Court “held that it violates the Administrative Procedure Act for an agency to promulgate regulations without properly considering the cost as well as the benefits. Agencies accordingly must repeal any regulation where the costs imposed are not justified by the public benefits, or where such an analysis was never conducted to begin with.”
And in Roman Cath. Diocese of Brooklyn v. Cuomo, the Fact Sheet indicates that the Court “struck down New York’s Covid-era occupancy restrictions on churches and synagogues because they were uniquely harsher than those that applied to “essential” businesses—such as acupuncture facilities. Each agency should review its regulations to ensure at least equal treatment of religious institutions vis-à-vis secular institutions for regulatory purposes.”
The Fact Sheet also provides further information on the potential impact of the other listed decisions.
Final direction. The presidential memorandum ends with the following directions by Trump:
“Accordingly, I hereby direct:
Following the 60-day review period ordered in Executive Order 14219 to identify unlawful and potentially unlawful regulations, agencies shall 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 should give priority to the regulations in conflict with the United States Supreme Court decisions listed earlier in this memorandum. The repeal of each unlawful regulation shall be accompanied by a brief statement of the reasons that the “good cause” exception applies.
Within 30 days of the conclusion of the review period directed in Executive Order 14219 to identify unlawful and potentially unlawful regulations, agencies shall submit to the Office of Information and Regulatory Affairs a one-page summary of each regulation that was initially identified as falling within one of the categories specified in section 2(a) of that Executive Order, but which has not been targeted for repeal, explaining the basis for the decision not to repeal that regulation.”
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