On April 9, 2025, President Trump issued a presidential memorandum directing federal agencies to revoke regulations his administration deems unlawful—without public notice or opportunity for comment. The directive urges all executive departments and agencies, including the Department of Health and Human Services (HHS), to invoke the “good cause” exception under the Administrative Procedure Act (APA) to bypass traditional notice-and-comment rulemaking.
This maneuver follows earlier executive actions seeking to implement broad regulatory rollbacks. An Executive Order already directed agencies to identify regulations potentially inconsistent with recent Supreme Court rulings such as Loper Bright Enterprises v. Raimondo (regarding judicial deference to federal agencies), West Virginia v. EPA (regarding the “major questions” doctrine), and Students for Fair Admissions v. Harvard (regarding race-conscious affirmative action programs). Now, agencies are expected to act “swiftly” on those findings by repealing rules unilaterally.
As noted by Katie Keith in Health Affairs, this approach, if implemented aggressively, could significantly destabilize federal health programs. Even minor regulatory changes can have significant ramifications for patients and providers. Eliminating input from the public on wholesale rescission of regulations risks confusion, legal uncertainty, and disruption.
Keith also writes that the identified Supreme Court cases “lay out broad constitutional and administrative law principles, not formulaic doctrine….Applying broad principles to new legal and factual contexts is the role of the courts, not agencies, especially when the question is one of constitutional authority.” She notes that HHS could try, for example, to revoke non-discrimination regulations issued under the Affordable Care Act based on the rationale that they are “inconsistent” with Students for Fair Admissions. Yet that would substitute HHS’s legal interpretation for that of the courts. Loper Bright held that only the judiciary can determine whether agencies have acted within their statutory authority.
HHS already paved the way for faster deregulation by rescinding the longstanding “Richardson waiver,” which committed the agency to using notice-and-comment rulemaking in most circumstances, even where not required by the APA. Of note, Medicare has its own notice-and-comment rulemaking requirement, separate and apart from the APA. However, other health programs remain vulnerable, and there is certain to be litigation over the scope and legality of the administration’s approach.
Thus far, it does not appear that HHS has rescinded major health regulations under the new directive. But the Center for Medicare Advocacy is concerned that regulations targeted for rescission will be those meant to protect patients and their rights. We are monitoring the situation closely.
- For more information, see: New Trump Directive to Further Erode Notice and Comment Rulemaking
May 1, 2025 – A. Bers