To be sure, past administrations have sought to settle litigation against controversial policies, and the Executive Branch’s authority to do so has been the subject of dueling intra-branch memoranda for decades. But the Supreme Court has signaled discomfort with these tactics. After the Biden administration voluntarily dismissed several appeals of lower court orders invalidating the Trump administration’s “public charge” rule, several states unsuccessfully sought to intervene to defend the rule. Writing separately, Chief Justice John Roberts, joined by three of his colleagues, noted that “[a] new administration is of course as a general matter entitled to” settle litigation. However, the four justices faulted the Biden administration for “leverag[ing]” one of the adverse court orders “as a basis to immediately repeal the [r]ule, without using notice-and-comment procedures.” The justices stressed that “[t]hese maneuvers raise a host of important questions,” “[t]he most fundamental [of which] is whether the [g]overnment’s actions, all told, comport with the principles of administrative law.” The Supreme Court did not resolve those questions, leaving them for another day.

These concerns have reemerged with even greater force during Trump’s second term. The administration has turned consent decrees into a deregulatory weapon, and courts are beginning to confront the limits of that strategy.

The Trump Administration’s Use of Consent Decrees for Policymaking

Four recent cases show how the Trump administration has sought to use consent decrees to stop federal policies that it disfavors, including affirmative action programs, vital consumer protections, and longstanding limitations on the ability of nonprofits, including religious organizations, to engage in political activity.

Perhaps the starkest example of the consent decree tactic comes from a challenge to the Small Business Administration’s contracting preferences. In Mid-America Milling Co. v. U.S. Department of Transportation (E.D. Ky.), two private contractors sued to stop the government from using race- and gender-based preferences in selecting construction contractors, as mandated by the Small Business Act. After defending the challenged program during the Biden administration, during the Trump administration the Department of Justice not only ceased its defense, but joined with the plaintiffs in May 2025 to ask the court to enter a consent decree that includes a permanent injunction that would bar the classifications nationwide. The court is currently considering the motion, alongside objections by intervenors.

In another case, a Consumer Financial Protection Bureau rule promulgated during the Biden administration barely lasted three months before being undone through a consent judgment. The CFPB finalized the rule, which prohibits the inclusion of medical debt on credit reports, on January 7, 2025, and it quickly attracted a challenge by two trade associations in Cornerstone Credit Union League v. CFPB (E.D. Tex.). By the end of April, plaintiffs and the CFPB jointly moved for the court to approve a proposed consent judgment. Over intervenors’ objections, the court approved the proposed consent judgment on July 11, vacating the rule under the Administrative Procedure Act (APA).

In some cases, courts have moved so swiftly to approve a consent decree that intervenors have had little time to assert their interests at all. In Chamber of Commerce v. CFPB (N.D. Tex.), various trade groups challenged another Biden-era CFPB rule concerning credit card penalty fees, obtaining a preliminary injunction. In April 2025, the parties jointly moved for the entry of a consent judgment, stating that they now agreed that the rule violated the applicable statute. The very next day, the court granted the motion and vacated the rule under the APA in a barebones three-paragraph order.

Finally, even when relief appears limited, a consent decree can have potentially sweeping implications. In National Religious Broadcasters v. Werfel (E.D. Tex.), two churches and two religious nonprofit organizations challenged the constitutionality of the so-called Johnson Amendment, which bars nonprofits (including churches) from campaigning for individual candidates for public office. On July 7, the parties jointly moved for the court to enter a consent judgment that would interpret the Johnson Amendment to not apply “[w]hen a house of worship in good faith speaks to its congregation.” Although the proposed decree only purports to enjoin the IRS (and its successors) from enforcing the Johnson Amendment against the two plaintiff churches, amici have asserted that the decree would “effectively enshrine a generally applicable exception” for similarly situated churches, and intervenors have objected on similar grounds.

Together, these cases illustrate the administration’s playbook: pivot from defense to collusion with plaintiffs, secure quick consent decrees, and use them to achieve broad policy change outside the regulatory or legislative process.

The Emerging Legal Challenges

These cases have surfaced a set of recurring objections. They roughly fall into four categories: (1) equitable limits, including improper collusion, (2) the rights of intervenors, (3) violations of administrative law (both notice-and-comment requirements and limitations on remedies), and (4) separation-of-powers concerns.

1. Equitable Limits: Consent decrees have “attributes both of contracts and of judicial decrees,” and are therefore subject to important equitable limits that the administration appears to have disregarded. Because “[j]udicial approval of a settlement agreement places the power and prestige of the court behind the compromise struck by the parties,” lower courts have generally held that consent decrees must be “fair, adequate, and reasonable” and “not illegal, a product of collusion, or against the public interest.” The Supreme Court also recognized in Frew v. Hawkins that consent decrees “must spring from, and serve to resolve, a dispute within the court’s subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based.” But as the intervenors allege in Mid-America, the Trump administration may have violated these principles by openly colluding with litigants and seeking to leverage a challenge to one statute into a consent decree invalidating another unchallenged statute.
2. Intervenors’ Rights: In some cases, consent decrees may even require intervenors’ agreement. The Supreme Court held in Local No. 93, International Association of Firefighters v. City of Cleveland that, although an intervenor may not “block the decree merely by withholding its consent,” intervenor’s consent is required when the decree would “impose duties or obligations” on them or “dispose of the[ir] valid claims.” To that end, courts have found duties, obligations, or valid claims where intervenors credibly asserted contractual rights, rights under anti-discrimination laws, and constitutional rights. Intervenors might rely on similar arguments in asserting that the court cannot enter a consent decree that they oppose.
3. Administrative Law: Turning to administrative limits, the Trump administration’s use of consent decrees to undo duly promulgated legislative rules may violate the APA’s notice-and-comment requirements. Under the APA, agencies are generally required to “use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.” By moving jointly with the plaintiffs in a given case to ask the court to vacate a validly promulgated legislative rule, the Trump administration has attempted to sidestep those requirements. But that approach stands on shaky footing, and the Ninth Circuit, at least, has explicitly held that consent decrees that modify or rescind agency rules are subject to rulemaking requirements. It is unclear whether courts even have the authority to vacate agency action by way of a consent decree, which is typically a “pro forma acceptance … of an agreement” rather than an “adjudication of the merits.” That’s a problem because the APA, in 5 U.S.C. § 706(2), authorizes a court to “hold unlawful and set aside agency action” (i.e., vacate it) only when that action is “found to be” unlawful. But “pro forma acceptance” is not equivalent to a “finding.” As one court put it: agency “consent is not alone a sufficient basis for [the court] to stay or vacate a rule” given the risk “that an agency could circumvent the rulemaking process through litigation concessions.”
4. Separation of Powers: Finally, the Trump administration’s efforts to set policy through consent decrees raise serious separation-of-powers concerns. As Professor Michael T. Morley has argued, such consent decrees “allow executive officials and agencies to improperly entrench their preferred policies, interpretations of the law, and enforcement priorities against changes by subsequent administrations, without having a court decide whether such restrictions are legally or constitutionally required.” And the Supreme Court has echoed this concern, explaining in Frew that, “[i]f not limited to reasonable and necessary implementations of federal law, remedies outlined in consent decrees … may improperly deprive future officials of their designated legislative and executive powers.” Indeed, that seems to be the administration’s goal.

Why CASA Bars “Universal” Consent Decrees

To these arguments, the Supreme Court’s recent decision in CASA might contribute another: consent decrees that contain universal injunctions against the government exceed equitable limitations on the permissible scope of relief. In CASA, the Court held that courts may not enter injunctions that “are broader than necessary to provide complete relief to each plaintiff with standing to sue.” CASA may therefore be a double-edged sword for the Trump administration—although it makes it more difficult for litigants to obtain universal relief against the administration’s actions, it may likewise make it more difficult for the administration to leverage pending cases to lock in its preferred policies through universal injunctions.

The argument for applying CASA this way is straightforward. Consent decrees are, again, “judicial acts,” which the Supreme Court has instructed are “subject to the rules generally applicable to other judgments and decrees.” An injunction incorporated in a consent decree, like any other injunction, is an equitable remedy subject to CASA. At the very least, CASA might make it more difficult for the Trump administration to assert that a consent decree that contains a universal injunction represents a “fair, adequate, and reasonable” effort to resolve a pending case, given that such a remedy would sweep far beyond providing complete relief to the plaintiffs. Again, that seems to be precisely the Trump administration’s objective.

The government might object that consent decrees are more contract than judicial act and so are not subject to CASA. But that argument would only give rise to another problem for the government: parties cannot use the “contract” of a consent decree to obtain what they cannot accomplish “by themselves,” and so an agency cannot contract to violate the APA, relevant statutes, or the U.S. Constitution. The government’s potential argument would also misapprehend the dual nature of consent decrees. Consent decrees are both contracts that cannot exceed the agency’s authority and judicial acts subject to similar equitable limitations as other orders. Universal consent decrees violate both of these principles.

What’s at Stake

The Trump administration’s attempts to use consent decrees are not technical skirmishes: they represent an effort to use litigation to short-circuit administrative—and democratic—decisionmaking. Policy is supposed to be set by the people’s representatives in Congress and by expert agencies acting pursuant to both presidential and congressional direction, not in backroom deals between Justice Department lawyers and private groups aligned with the administration. Particularly after CASA, litigants might have ample tools to challenge these decrees. And even if litigants do not, courts themselves should resist the Trump administration’s demands that they rubber stamp the executive’s attempts to set policy by decree.

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The holding in CASA rests on the Supreme Court’s narrow and technical understanding of the relief traditionally available to plaintiffs in equity, as authorized by the Judiciary Act of 1789. “Neither the universal injunction nor any analogous form of relief,” the Court wrote, “was available in the High Court of Chancery in England at the time of the founding.” Thus, the Court reasoned, federal courts cannot enter injunctive relief that is “broader than necessary to provide complete relief to each plaintiff with standing to sue.” The Court’s decision to limit the availability of universal injunctions will make it more difficult for plaintiffs to halt even flagrantly unlawful executive branch actions—a result which Justice Ketanji Brown Jackson’s dissent characterized as “an existential threat to the rule of law.”

CASA’s reasoning, however, explicitly left open other ways to obtain broad relief against unlawful executive actions. Drawing on our prior work on remedies, this article provides an overview of these approaches. First, we explain how litigants might utilize the distinct remedies provided by the Administrative Procedure Act—remedies which courts (albeit not all justices on the current Supreme Court) have generally understood to have universal scope. Second, we lay out how litigants might still be able to justify broad or even universal injunctions as necessary to provide “complete relief” for their injuries.

Remedies Under the Administrative Procedure Act

As others have noted, footnote 10 of the majority’s opinion in CASA made plain that “nothing” in the Court’s decision “resolves the distinct question whether the [APA] authorizes federal courts to vacate federal agency action.” But what is vacatur? And why might it deliver universal relief, CASA notwithstanding?

Courts’ authority to vacate agency action under the APA arises from 5 U.S.C. § 706, which directs courts to “hold unlawful and set aside agency action, findings, and conclusions” that are, among other things, contrary to law or arbitrary and capricious. As the D.C. Circuit has held, “when a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” That principle allows a “single plaintiff, so long as he is injured by the rule, [to] obtain ‘programmatic’ relief that affects the rights of parties not before the court.” Although the Supreme Court has not squarely addressed that principle, and although some justices have cast doubt upon it, as detailed below, the Court has affirmed the vacatur of agency decisions numerous times, including recently in DHS v. Regents (2020) and Department of Commerce v. New York (2019). Lower courts in the Biden administration increasingly turned to vacatur in challenges to executive actions, and two district courts post-CASA have already vacated Trump administration policies.

The Court’s reasoning in CASA need not disturb the availability of vacatur. The decision “rest[ed] solely on the statutory authority that federal courts possess under the Judiciary Act of 1789,” and did not interpret the distinct remedial framework provided by the APA. Notably, in footnote 4, the Court declined to address a distinct argument pressed by the government—that “Article III forecloses universal relief.” If that theory had been adopted, it might have supported similar limitations on courts’ authority to vacate agency rules. Although the Court did not resolve the Article III issue this time, the government may well press it in future cases.

The Court may also be inclined to address the question whether the APA authorizes vacatur at all, which has been the subject of dueling separate opinions—and a virtually endless amount of scholarship—over the last several years. But those opinions provide reason to believe that at least five justices, including several members of the CASA majority, would hold that the APA does permit courts to vacate agency rules universally, not just as to the particular parties in the case. To be sure, Justice Neil Gorsuch, joined by Justices Clarence Thomas and Amy Coney Barrett, cast doubt upon vacatur in his concurrence in United States v. Texas (2023). But Justice Samuel Alito, in dissent, criticized Justice Gorsuch’s view as “a sea change in administrative law.” And Justice Brett Kavanaugh has mounted perhaps the most aggressive defense by any justice of universal vacatur in his opinions in CASA, Corner Post v. Board of Governors of the Federal Reserve System (2024) and Griffin v. HM Florida-Orl, LLC (2023). Although Chief Justice John Roberts does not appear to have written on the question, including as a judge on the D.C. Circuit, he characterized the government’s position against vacatur as “fairly radical” in an extended colloquy during oral argument in Texas, and authored both Regents and Department of Commerce. Finally, the tenor of the dissents in CASA, and the questioning at oral argument, suggests that Justices Sonia Sotomayor, Elena Kagan, and Jackson see the need for universal relief in at least some cases.

Because the government is likely to continue to argue that the APA does not authorize vacatur, litigants should be prepared to respond. Justice Kavanaugh’s Corner Post concurrence provides a thorough summary of the government’s argument—and its flaws. The government has asserted that Section 706(2)’s reference to setting aside agency action does not create a distinct remedy, and that instead Section 703, which states that the “form of proceeding for judicial review” is generally “any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus,” limits a reviewing court to traditional equitable remedies. But as Justice Kavanaugh explained, the contemporaneous definition of “set aside”—to “cancel, annul, or revoke”—as well as its antecedents in pre-APA federal (and state) statutes corroborates the view that setting aside a rule meant, in essence, wiping it off the books. By creating a distinct statutory remedy, the APA departs from the traditional equitable principles upon which the Court relied in CASA.

Vacatur may therefore provide litigants with a universal remedy at the end of a case, but what about preliminary relief? The APA answers that question, too, in potentially two ways. First, Section 705 provides that a reviewing court, “[o]n such conditions as may be required and to the extent necessary to prevent irreparable injury … [,] may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.” There are good arguments that “the scope of preliminary relief under Section 705 aligns with the scope of ultimate relief under Section 706, which is not party-restricted.” Indeed, two district courts have already cited Section 705 in entering universal preliminary relief post-CASA. Even if 705 stays were, for some reason, narrower than vacatur under Section 706, litigants might also have the option of moving for summary judgment on an expedited timeframe to accelerate the availability of vacatur. Second, in his concurrence in CASA Justice Kavanaugh recognized that, in APA cases, “plaintiffs may ask a court to preliminarily ‘set aside’ a new agency rule” under Section 706, citing the stay in West Virginia v. EPA (2016) as an example. However framed, the APA provides options for litigants to seek interim relief that extends to non-parties.

Nevertheless, the APA’s remedies might not provide a perfect substitute for the universal injunction in all cases. Most importantly, the President is not considered an “agency” under the APA, and so the APA’s remedies do not extend to nonstatutory review of presidential action (or other situations where APA review is unavailable). However, there are exceedingly few circumstances where the President himself may take action without any subsequent agency implementation—the birthright citizenship EO itself calls for agencies to create “guidance”—and so this limitation may well matter more in theory than in practice. The APA’s remedies also operate somewhat differently from injunctions. Courts will sometimes—albeit rarely—remand an action to the agency without vacating it, leaving it in effect in the interim. And even when a court vacates an agency’s action, the agency may be able to correct any errors and take the same action again. Even so, in the mine run of challenges to executive action, the APA’s remedies remain a powerful post-CASA tool.

“Complete” Equitable Relief

Apart from the APA, CASA suggests additional ways litigants might be able to obtain relatively broad, or even effectively universal, relief in equity. CASA reiterated the long-established principle that “a court of equity may fashion a remedy that awards complete relief” to the plaintiffs, even as it barred courts from going further. Under the complete-relief principle, while courts may not directly “award … relief to nonparties,” they may fashion injunctions that benefit nonparties “incidentally.” The “archetypal” example the Court provided is a nuisance action. Abating a nuisance generally benefits both the plaintiff and his or her neighbors. As another example, the Court cited gerrymandering cases, in which providing complete relief to the plaintiff requires redrawing district lines for everyone.

Class Actions. One straightforward implication of the complete-relief principle is that cases with more plaintiffs can give rise to broader injunctions. For this reason, class actions have been identified as an alternative means of obtaining universal relief. Federal Rule of Civil Procedure 23 provides that “[o]ne or more members of a class may sue … as representative parties on behalf of all members.” Indeed, in CASA, the Court observed that the founding-era means of obtaining nonparty relief, the “bill of peace,” had “evolved into the modern class action.”

Class actions, however, can be hard to maintain. In particular, “the hurdle of class certification,” as Justice Sotomayor put it in dissent, is “a drawn-out procedural bog.” Rule 23 requires plaintiffs seeking a class-wide injunction to demonstrate that “the class is so numerous that joinder of all members is impracticable,” “there are questions of law or fact common to the class,” “the claims and defenses of the representative parties are typical of the claims or defenses of the class,” and “the representative parties will fairly and adequately protect the interests of the class.” Nevertheless, one post-CASA district court has already certified a class for the purpose of issuing broad injunctive relief.

Litigants may also be able to seek provisional class certification on an emergency basis. In litigation challenging the Trump administration’s invocation of the Alien Enemies Act, the district court provisionally certified a class in just a few hours. And in another AEA case, the Supreme Court “issue[d] temporary injunctive relief to [a] putative class” that the district court had not yet certified. One day earlier, at oral argument in CASA, the Solicitor General admitted that there may be “appropriate cases” where “courts have certified class actions on an emergency basis.” Justice Kavanaugh also alluded to the practice in his CASA concurrence, writing that plaintiffs may “ask a court to award preliminary classwide relief that may, for example, be statewide, regionwide, or even nationwide.” The Supreme Court is almost certain to address this issue again, including because the CASA plaintiffs have already moved for class certification and a new temporary restraining order.

Suits by Associations, Organizations, and Coalitions. Even outside of the class action context, certain categories and coalitions of plaintiffs might be able to obtain relatively far-reaching relief. Membership associations and organizations with broad institutional interests frequently challenge executive action. So do ad hoc groups of plaintiffs who band together in particular cases. These dynamics were at play in the recent challenge to the National Institutes of Health’s move to “slash[] and cap[] previously negotiated indirect cost rates on all existing and future grant awards for biomedical research,” which would have “impact[ed] thousands of grants, totaling billions of dollars.” A large coalition of plaintiffs quickly obtained a universal preliminary injunction. Even if that remedy is now off the table, an injunction merely granting relief to the plaintiffs—who included almost half of the states, numerous large universities, and several membership associations of universities and medical institutions—would necessarily sweep very broadly, likely covering a large share of funding recipients.

But here, too, there are complications and uncertainties. To the extent courts require associations suing on behalf of their membership to identify their members by name, it may be impracticable or unwise to do so. Whereas the Association of American Universities can easily produce a membership roster, groups representing and advocating for, say, undocumented immigrants may be unable to identify all their constituents, or be fearful that doing so will put those individuals at risk. This strategy might also lead to increased focus on Article III standing, another obstacle to federal litigation. Last year, in his concurrence in FDA v. Alliance of Hippocratic Medicine (2024), Justice Thomas argued that established precedent recognizing associational standing is inconsistent with Article III. And the majority arguably trimmed the separate doctrine of organizational standing, narrowing the circumstances in which an organization has standing to vindicate its own injuries in federal court. Finally, while only one of a group of plaintiffs needs standing for a court to reach a case’s merits, at the remedial stage courts may require each plaintiff seeking the benefit of an injunction to prove its own standing. Whether associations, organizations, and coalitions can systematically obtain broad relief in challenges to executive action remains to be seen.

Suits by States. Litigants might also take advantage of the complete-relief principle by seeking injunctions that, through their “incidental” effect on nonparties, confer broad or even universal relief. States, which have long been powerful litigants against executive action, might be particularly well positioned to take this approach. States were plaintiffs in both Regents, which halted the rescission of the Deferred Action for Childhood Arrivals program, and Department of Commerce, which blocked the addition of a citizenship question to the 2020 Census. State litigation was also successful in blocking executive action during the Biden administration, as the captions of the cases announcing the arrival of the major questions doctrine—West Virginia v. EPA (2022) and Biden v. Nebraska (2023)—make clear. States, individually and in coalition, are currently litigating numerous challenges to Trump administration actions.

The challenges to the birthright citizenship executive order, two of which were brought by states, may themselves provide a test-run of this approach. The Court in CASA acknowledged the states’ argument that “a universal injunction was necessary to provide the States themselves with complete relief.” Specifically, the states argued that “their harms—financial injuries and the administrative burdens flowing from citizen-dependent benefits programs—cannot be remedied without a blanket ban on the enforcement of the Executive Order” because “[c]hildren often move across state lines or are born outside their parents’ State of residence.” The Court therefore left it to the lower courts on remand to determine what sort of injunction would afford complete relief to the states. But it seems certain that the Court will have more to say on state challenges to executive action soon.

Conclusion

Litigants would be well-advised to take Trump v. CASA seriously—including as a sign of how rigorously the Supreme Court will police the remedies ordered by district courts. As Justice Kavanaugh’s concurrence in CASA noted, the Court will frequently be the nationwide arbiter of the interim legal status of major federal statutes and regulations. But it would be a mistake to write off universal remedies entirely, particularly when there remain multiple paths towards obtaining them.

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The Trump administration has made clear its longstanding disdain for the administrative state—and for established principles of administrative law. Over the last several months, the administration has sought to shrink the federal government by slashing the federal workforce and by dismantling entire agencies. Those efforts have repeatedly run aground in the courts before judges appointed by presidents of both parties (including by President Trump himself).

Now, the administration appears to be pursuing a broader objective: a sweeping deregulatory campaign. In February, President Trump issued Executive Order 14219, directing agency heads to, “in coordination with their DOGE Team Leads and the Director of the Office of Management and Budget, initiate a process to review all regulations … for consistency with law and Administration policy” within 60 days. He followed up in April with a memorandum directing agencies to “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.” The administration’s deregulatory push is likely to unfold in the coming months.

The APA sets forth the process by which federal agencies are required to promulgate and rescind regulations. With certain limited exceptions, an agency is first required to publish a “notice of proposed rulemaking” in the Federal Register and provide an opportunity for public comment, usually over the course of thirty to sixty days. The agency then publishes a “final rule,” which includes a preamble that addresses the public’s comments and explains why the agency decided to follow its chosen course. Although some have correctly noted that the APA’s requirements can complicate effective governance, they remain legally binding and serve numerous essential purposes—among them, improving the quality of agency decisionmaking, promoting transparency, and allowing communities to weigh in on rules that affect them.

However, the administration is likely to try to circumvent these requirements for reasons both ideological and practical. President Trump and his advisors view the APA as a hindrance to their deregulatory agenda. And having depleted federal agencies of their staff, administration officials will struggle to muster the resources needed to complete the ordinary steps of the administrative process, like reviewing public comments and drafting Federal Register publications.

Indeed, the Trump administration has already attempted to circumvent the APA’s notice-and-comment requirements in a number of ways, as we describe below, including by attempting expansive uses of the APA’s narrow exceptions and by using unconventional mechanisms to nullify rules. Although these efforts largely have yet to be reviewed by the courts, they conflict with established precedent concerning the APA and should be struck down as unlawful. Moreover, they are likely harbingers of what is to come.

Below, we outline several approaches the administration is taking and explain why many are unlikely to survive legal scrutiny, with reference to rules and doctrines also described in Governing for Impact’s new APA Library.

Invoking Direct Presidential Authority

To start, the Trump administration has gestured, at least, toward a broad interpretation of the President’s Article II authority that would permit the President to override the APA’s notice-and-comment requirements. In Executive Order 14264, President Trump directed “the Secretary of Energy to publish in the Federal Register a notice rescinding” the Department’s rule defining the term “showerhead” under the Energy Policy and Conservation Act. That order contained a brazen, if somewhat Delphic, assertion: that, according to the President, “[n]otice and comment is unnecessary because I am ordering the repeal.”

That statement could be interpreted in at least two ways. First, it might be an assertion of inherent Article II authority to countermand the APA’s notice-and-comment requirements. But absent some specific statutory authority—and we are aware of no such authority under the Energy Policy and Conservation Act or otherwise—agencies may not bypass applicable notice-and-comment requirements on the President’s say-so. Under Article II, executive branch agencies “are duty-bound to give effect to the policies embodied in the President’s direction,” but only “to the extent allowed by the law.”

Second, the President’s statement could be interpreted as an invocation of the APA’s “good cause” exception, which allows an agency to skip notice and comment where it “for good cause finds” that notice and comment is “unnecessary,” among other bases. But courts have repeatedly held that the APA’s exceptions are to be “narrowly construed and only reluctantly countenanced.” In particular, the unnecessary prong “is confined to those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry … and to the public.” Neither a presidential directive, nor “[b]ald assertions that the agency does not believe comments would be useful,” is sufficient to meet that standard.

The Trump administration’s subsequent actions suggest that it lacks confidence in either interpretation. Shortly after Executive Order 14264 was issued, the Department of Energy published a final rule repealing the prior showerhead definition. That rule nodded to the President’s directive and the good cause exception, but also noted that the showerhead definition was “an interpretive rulemaking,” and such rules are exempt from notice and comment under another of the APA’s exceptions. Nevertheless, the administration’s Article II argument may well reappear.

Deeming Prior Rules “Unlawful”

The showerhead order is not the only time the Trump administration has advanced a questionable interpretation of good cause. The President’s aforementioned April memorandum—issued the same day as the showerhead order—mandated that, “[i]n 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.” According to the memorandum, “[r]etaining and enforcing facially unlawful regulations is clearly contrary to the public interest,” and “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.”

As we’ve explained, neither theory withstands scrutiny. The D.C. Circuit has rejected the argument that “notice and comment requirements do not apply to ‘defectively promulgated regulations.’” Such a theory “would permit an agency to circumvent [those] requirements of [the APA] merely by confessing that the regulations were defective in some respect,” and “ignore the fact that the question whether the regulations are indeed defective is one worthy of notice and an opportunity to comment.”

Indeed, neither of the two good cause grounds cited by the administration seem applicable. As to “unnecessary,” which we’ve addressed above, we need only add that the public, including expert legal advocates, may have valuable insights into whether a given regulation is unlawful and, if so, how an agency should respond to any legal deficiencies. And the “public interest” prong is “is met only in the rare circumstance when ordinary procedures—generally presumed to serve the public interest—would in fact harm that interest.” The exception is only “appropriately invoked when the timing and disclosure requirements of the usual procedures would defeat the purpose of the proposal.” The April memorandum provides no basis for such a conclusion, and it is unlikely that agencies following the memorandum will be able to substantiate it.

Nor is the administration likely to limit its deregulatory efforts to regulations that suffer from clear legal deficiencies. The April memorandum directs agencies to consider existing regulations under ten recent Supreme Court decisions. But the application of those decisions—assessing, for example, whether a regulation constitutes a “major question” or failed to adequately consider “costs”—will not be entirely straightforward. To the extent the administration adopts an overbroad or erroneous understanding of those decisions, its actions will be subject to challenge.

Overuse of Direct Final Rules

The Trump administration has arguably attempted to stretch the “unnecessary” prong of the APA’s good cause exception in yet another way: by liberally issuing so-called “direct final rules.” Direct final rules are not preceded by a proposed rule; they are accompanied by a request for comment and automatically go into effect unless an adverse comment is received, in which case the agency goes through the traditional rulemaking process before making the rule effective. Their basis in the APA is subject to some debate, but one theory is that they rely on the good cause exception: comment is unnecessary where a rule is so mundane that nobody cares to oppose it.

Examples from the initial months of President Trump’s second term, however, indicate that the administration does not intend to reserve direct final rulemaking for mundane matters. On a single day in May, the Department of Energy published thirteen direct final rules on a wide range of topics. One eliminated a requirement that grant recipients “that sponsor sports teams for members of one sex … allow members of the opposite sex to try out for the team” in certain situations, asserting that such requirements “ignore differences between the sexes which are grounded in fundamental and incontrovertible reality.”

Was this a “routine determination, insignificant in nature and impact, and inconsequential”? Hardly, as indicated by the more than 1,500 comments submitted so far. Nor did the direct final rule “incorporate[]” a good cause finding “and a brief statement of reasons therefor,” as the APA requires when invoking the good cause exception. Affected communities should keep a close eye on the administration’s efforts to use direct final rules to implement substantive policy changes, particularly if there are indications that agencies are ignoring significant adverse comments.

Expanding Other Notice-and-Comment Exceptions

The Trump administration’s attempts to exploit the APA’s notice-and-comment exceptions have not been limited to good cause. Two other exceptions warrant particular attention: the APA’s “foreign affairs” exception and its exception for rules related to “public property, loans, grants, benefits, or contracts” (what we call the “proprietary” exception).

As to the foreign affairs exception, the Secretary of State issued a sweeping determination in March that “all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States”—i.e., all matters relating to immigration and foreign trade—“constitute a foreign affairs function of the United States under the [APA].” That is anything but the “narrow construction” that the APA requires. Indeed, courts have warned that “[t]he dangers of an expansive reading of the foreign affairs exception in th[e immigration] context are manifest,” because “it would be problematic if incidental foreign affairs effects eliminated public participation in this entire area of administrative law.”

In contrast, the proprietary exception is admittedly broad—courts have recognized that, “even construed narrowly, [the exception] cuts a wide swath through the safeguards generally imposed on agency action.” But that is precisely why multiple agencies have, at the recommendation of the Administrative Conference of the United States, voluntarily waived the applicability of the exception. Unfortunately, the Secretary of Health and Human Services rescinded that agency’s so-called “Richardson Waiver” in March, reversing a fifty-year-old policy in a short notice with scant reasoning. To the extent HHS relies on the revocation of the Richardson Waiver to rescind rules without notice and comment, courts may find the revocation itself to be arbitrary and capricious.

Relying on the Courts

The Trump administration has also tried to eliminate regulations outside the standard regulatory process by reversing course on several pending legal challenges. These efforts have taken multiple forms, including declining to appeal adverse judgments, acquiescing in plaintiffs’ requests for vacatur of challenged rules, and agreeing to rescind rules as part of settlements.

Although the executive branch possesses broad discretion in resolving litigation against the United States, such decisions are most problematic when they purport to grant relief beyond the plaintiffs in a given case or to limit the legitimate policy discretion of a future administration. These complicated issues have been the subject of dueling executive branch memoranda over the course of several decades, and we do not attempt to resolve them here. However, the Trump administration should not expect that courts will simply rubber-stamp its efforts. As Chief Justice Roberts, writing for Justices Thomas, Alito, and Gorsuch, emphasized in 2022, there are “important questions” about whether these attempts at “rulemaking-by-collective-acquiescence … comport with the principles of administrative law.” We agree, and expect that courts will have more to say on this front.

Non-Enforcement of Rules

In situations where the Trump administration is unable to repeal rules immediately, it appears to have devised a fallback approach: declining to enforce them in the interim. Indeed, it has already done so with respect to an array of vital consumer protections as well as a rule limiting miners’ exposure to hazardous silica dust. The administration seems likely to seize on the Supreme Court’s 1985 decision in Heckler v. Chaney, which held that an agency’s decision not to initiate a specific enforcement proceeding is presumptively immune from judicial review.

As we’ve explained, however, the situation in Heckler is worlds away from a categorical decision by an agency not to enforce a rule that remains on the books. Heckler itself recognized that an agency would open itself up to challenge if it abdicated its statutory responsibilities or entirely declined to enforce a valid rule. After all, “an agency issuing a legislative rule is itself bound by the rule until that rule is amended or revoked.” By the same token, an agency generally cannot stay a legislative rule that has gone into effect without going through notice and comment. These principles would be meaningless if an agency could nullify a duly promulgated rule through mere neglect.

Conclusion

The Trump administration is poised to expand its use of these tactics, among others, as part of its broader deregulatory agenda. But rather than devising increasingly creative (and legally dubious) strategies for circumventing the APA’s notice-and-comment requirements, it should recognize the value of robust public participation in the regulatory process. At a minimum, these efforts risk setting a damaging precedent—one that future administrations, perhaps with very different views of the role and merits of regulation, could likewise exploit.

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