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The Trump Administration is relying on court decisions like Loper to instruct agencies to repeal regulations it believes are “facially unlawful ([link removed]) ” or because certain terms and definitions “do not accord with the single, best meaning ([link removed]) of the statutory text”


** Trump Administration Cites Loper With New Instructions on Repealing “Unlawful Regulations” ([link removed])
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AFP Foundation’s Ryan Mulvey on President Trump’s new memorandum entitled “Directing the Repeal of Unlawful Regulations ([link removed]) .” The memo, which builds on directions set out in Executive Order 14219 ([link removed]) (Feb. 19, 2025), instructs the heads of all executive branch agencies to prepare for repealing “facially unlawful regulations” after April 20, 2025.

Agencies will moreover prioritize the repeal of regulations that run afoul of ten Supreme Court decisions ([link removed]) identified in the memo, including Loper Bright Enterprises v. Raimondo ([link removed]) .

Perhaps the most important—and controversial—aspect of the memo, however, is its expectation that agencies finalize regulatory rescissions “without notice and comment,” that is, without giving interested parties the opportunity to voice support or opposition to any given deregulatory action.
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** Sunshine Week, Loper Bright, and FOIA ([link removed])
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AFP Foundation’s Ryan Mulvey published an article in the Yale Journal on Regulation’s Notice & Comment blog ([link removed]) on how “Loper Bright will impact FOIA jurisprudence, specifically with respect to judicial review of agency use of Exemption 3.”

“Chevron is overruled.” With these historic words, Loper Bright eliminated Chevron deference. The resolution of all legal questions—including the meaning of withholding statutes used with the FOIA—should now be resolved de novo. Whether the use of extrinsic withholding statutes in the FOIA context is best understood as a matter of “reconciliation,” which might technically trigger review under Section 706, or “incorporation,” under Section 552, the same method for judicial decision-making applies across the board.

When a requester disputes that a record is protected by Exemption 3, a court is obliged to provide its independent, best judgment about the scope and application of the underlying withholding provision. Of course, there may be instances where “respect” for the agency’s position is appropriate. And Congress could, in theory, design a withholding statute to grant an agency express discretion to set the bounds of its reach. But even then, the general rule is de novo review, and the legal limits of the scope of the statute under review remain with the court to determine.
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** Quick Hits
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* Proposed Rule Relies on Loper Bright to Rescind Endangered Species Act “Harm” Regulations ([link removed])
+ The Departments of the Interior and Commerce have proposed ([link removed]) to rescind an Endangered Species Act rule defining “harm” because it “do[es] not accord with the single, best meaning of the statutory text” and instead they will “rest on the statutory definition of ‘take.'”
* Loper’s Impact on Notice and Comment Rulemaking ([link removed])
+ Cary Coglianese & Daniel E. Walters write in the Yale Journal on Regulation’s Notice & Comment blog ([link removed]) .


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