President Trump has issued a memorandum directing federal agencies to begin repealing unlawful regulations, which could impact customs and trade rules.
The memo cites ten Supreme Court decisions over the past five years “that recognize appropriate constitutional boundaries on the power of unelected bureaucrats and that restore checks on unlawful agency actions.” In February Trump gave federal agencies 60 days to identify certain categories of regulations that are or may be unlawful, particularly in light of these decisions, and to begin plans to repeal them.
The new memo states that after this 60-day review period (which has expired or will soon expire) federal 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.” Specifically, a White House fact sheet states, agencies must repeal regulations that:
- were promulgated in reliance on Chevron deference to agency regulations interpreting ambiguous laws and can be defended only by relying on such deference;
- violate the major questions doctrine (which bars agencies from claiming vast delegations of power on an important issue in a statutory text that doesn’t clearly provide such authority);
- authorize enforcement proceedings enabling an agency’s courts to impose judgments or penalties that can only be obtained via jury trial;
- has costs that are not justified by public benefits or where a cost-benefit analysis was never conducted to begin with;
- are inconsistent with a properly bounded interpretation of “waters of the United States;”
- rests on foundational assumptions that have changed and are no longer defensible;
- are inconsistent with a proper understanding of the Takings Clause, which protects property from being taken by the government without compensation;
- impose racially discriminatory rules or preferences; or
- do not ensure equal treatment of religious institutions vis-à-vis secular institutions for specific purposes.
The memo instructs agencies to repeal such regulations without public notice and comment where 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,’” the memo states, and “retaining and enforcing facially unlawful regulations is clearly contrary to the public interest.”
The memo further instructs federal agencies to submit to the Office of Information and Regulatory Affairs within 30 days of the end of the review period a one-page summary of each regulation that was identified as falling within one of the specified categories but has not been targeted for repeal.
Customs and trade regulations could be among those repealed, but no further information to that effect has yet been made public. As a result, notification of repeal of any such regulations may not come until its (expected) publication in the Federal Register.
Copyright © 2025 Sandler, Travis & Rosenberg, P.A.; WorldTrade Interactive, Inc. All rights reserved.