Trump’s regulatory housecleaning won’t be easy

Among President Donald Trump’s major preoccupations throughout the 2024 campaign was an oft-repeated desire to “demolish” the “deep state.”¹ He aims to reduce not only the army of civil servants throughout the federal government but also the volume of regulation.

Frustration with the sheer volume and scope of federal regulation is understandable. Over the decades, the Code of Federal Regulations has mushroomed to over 180,000 pages.² Regulations affect how virtually everything is produced or delivered in our economy. In some cases, their complexity, especially when layered on top of local rules, can make it difficult to build new and much-needed infrastructure, such as transmission power lines.

At the same time, however, regulations keep our food supply, automobiles, financial markets and institutions, pharmaceuticals, and workplaces safer, our environment cleaner, and our financial markets and instruments more transparent than they otherwise would be. That’s because the market can “fail” in various ways: Private companies do not fully internalize the costs their activities may impose on others. Without regulation, consumers may not be fully informed about the risks of the products and services they buy. Private markets alone are likely to underinvest in so-called public goods. Over many decades, Congress has enacted a growing number of statutes requiring federal agencies to mitigate these market failures. Notably, many of the rules that conservatives now attack—those addressing environmental and workplace externalities—have been issued by agencies that were created and under statutes passed with the support of a Republican president, Richard Nixon. (See table below.)

The political origins of the modern regulatory landscape notwithstanding, Trump didn’t wait long after the election to make a seeming down payment on his promise to decimate the deep state. He appointed Elon Musk and Vivek Ramaswamy to head up a non-governmental initiative with potentially powerful influence in the second Trump administration. The entity is somewhat misleadingly called the Department of Government Efficiency, or DOGE. Its two designated leaders didn’t wait long after their appointment to tell the world what they planned to do.

Writing in the Wall Street Journal on November 20, 2024, Musk and Ramaswamy promised “a drastic reduction in federal regulation,” which in turn would provide “sound industrial logic for mass head-count reductions across the federal bureaucracy.”³ In justifying Trump’s authority to implement their vision, the pair cited two recent Supreme Court decisions as legal authority supporting their efforts: West Virginia v. Environmental Protection Agency (2022) and Loper Bright v. Raimondo (2024).

DOGE’s ambition and the Supreme Court cases that may limit it

In West Virginia v. EPA, the Supreme Court crystallized a new method for discerning whether an agency’s legal authority is broad enough to support especially significant regulatory initiatives. Musk and Ramaswamy believe the Court’s approach supports the widespread deregulation they envision. As we discuss in more detail below, the case involved a challenge to the first Trump administration’s rescission of a broad rule issued by EPA during the Obama administration intended to produce a national shift in generating electric power from existing coal-fired power plants to power plants fired instead by natural gas. The Supreme Court held that the Obama administration never had the statutory authority to issue the rule in the first place because Congress never gave it such broad power.

Key to the West Virginia decision was the Court’s embrace of the “major questions doctrine” which requires courts first to assess the “‘history and the breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion” to determine if the administrative action qualifies for extra scrutiny as a “major question.”⁴ If the challenged action would result in an “unheralded” and “transformative expansion” of the agency’s regulatory reach, then the second step of the test requires the agency to locate in its statute “clear congressional authorization” for its ambitions.⁵ Musk and Ramaswamy want to use the Court’s demand in West Virginia v. EPA for exceptional statutory clarity to identify many rules that they (and other Trump appointees) believe flunk the “major questions” test and thus have no legal basis for remaining on the books.

Musk and Ramaswamy believe they have another arrow in their deregulatory quiver, which is yet another Supreme Court decision shaping how courts review how agencies interpret the laws they implement. In Loper Bright v. Raimondo , the court overturned the Chevron doctrine set by the Supreme Court in 1984. The Chevron case commanded lower court deference to agencies’ reasonable interpretations of legally ambiguous federal statutes. Going forward, under Loper Bright, the courts will now more often have the last word on the meaning of federal statutes that set the bounds of agency regulatory authority, just as they do with other statutes. Musk and Ramaswamy apparently assume that, because courts will no longer defer to agencies’ legal interpretations of the scope of their own regulatory authority, judicial skepticism will make it easier for the Trump agencies to roll back existing rules. At the very least, Trump’s administrators will have reason to pause enforcement of rules that their agencies believe cannot be sustained without Chevron deference.

Ramaswamy sees these two decisions, in combination, as giving the new administration room to undertake a thorough regulatory housecleaning. As he put it in a podcast, “Hey, Supreme Court, you’ve told us a lot of what we are doing is illegal … So we’re not going to do that anymore, and that requires us to take any regulation that fails these standards …  We’re just going to rescind, they are null and void.”⁶

Ramaswamy’s statements suggest a far more aggressive deregulatory approach in the second Trump term than during the first term, when President Trump both slowed the numbers of new regulations issued while attempting to eliminate others on the books under what was called the “two-for-one” policy. For every agency proposal of a new “significant” rule (one with estimated economic impact of $100 million or more), the proposing agency was required to identify two existing rules it would then consider rescinding.⁷

Unfortunately for Trump, his first Administration’s record defending regulatory actions in court was the worst among recent presidents. New York University Law School’s Institute for Policy Integrity (IPI) documented the outcomes of litigation brought to challenge the first Trump administration’s regulatory initiatives. Tracking cases that involved such significant agency measures as regulations, guidance documents, and agency memoranda, IPI found the Trump administration won lawsuits only 22 per cent of the time without having to withdraw the defendant agency’s challenged action.⁸ Among those losses were important setbacks to deregulation. For example, “[I]n May 2017, the Department of Energy abandoned a delay of conservation standards for ceiling fans after being sued. In June 2017, the Environmental Protection Agency published a final rule setting limits on mercury discharges after being sued for unlawfully rescinding the rule. . . . [I]n June 2020, after being sued for failing to comply with notice-and-comment requirements, EPA announced that it would be terminating its COVID-19-related policy of nonenforcement.”⁹

Of the 77 “major rules”—those with an estimated impact of $100 million or more—challenged during his first administration, Trump’s win rate in the courts was a bit higher, though still only 31%.¹⁰ The Brookings Institution’s Center for Regulation and Markets also examined important regulations rescinded during Trump 1.0 and concluded that his deregulatory efforts “fared quite poorly in court.” ¹¹

This does not mean Trump’s efforts were without impact. The Brookings report found that Trump often succeeded in “moving policy away from where the Obama administration left it.”¹² In many cases, the Brookings study concluded, “even when the Trump administration suffered decisive losses in court, it often still succeeded in weakening, if not erasing, Obama administration policy.”¹³ What Trump’s record does mean is that the magnitude of deregulatory impact from his second administration is going to be dampened significantly unless agency lawyers can provide stronger legal support for their clients’ efforts.

The DOGE regulatory rescission plan promises to go far beyond the Trump 1.0 two-for-one policy and eliminate a greater number of rules. How many? In late December, the president-elect suggested upping the 2-for-1 policy of his first term to ten rules rescinded for every new one issued in his second term.¹⁴ Ramaswamy has hinted at something even bigger by imagining a “hypothetical” reduction of “50%” of all rules.¹⁵ Can Trump 2.0 pull off what Trump 1.0 had limited ability to do? Putting aside the questions that one of us has raised surrounding the legality of a non-governmental organization like DOGE performing government functions,¹⁶ we are both skeptical, despite claims that the West Virginia and Loper precedents will make rescissions easier to achieve this time around.

Rescissions: Like pulling teeth

Musk and Ramaswamy outlined in their November Wall Street Journal op-ed how their rescission plan will unfold. First, artificial intelligence (AI) tools will be deployed to identify regulations issued without legal authority, following the principles of West Virginia v. EPA and Loper Bright. Then, “DOGE will present this list of regulations [to be rescinded] to President Trump, who can, by executive action, immediately pause the enforcement of those regulations and initiate the process for review and rescission.” Trump may, of course, issue some such order, although it is likely to be couched in more cautious terms. Agencies will likely be told to “consider” rescission of the target rules and to pause enforcement “to the extent permitted by law”¹⁷—a limitation that is standard in presidential directives. Regulated parties will have to note, however, that “paused” enforcement does not relieve them of whatever obligations the target rules impose. Acting as if the rules have been de facto rescinded will be a risky strategy unless and until agencies actually undertake repeal of the rules and the repeals survive the all-but-inevitable challenges in court. Trump’s order, in other words, is unlikely to induce any immediate sense of deregulatory relief.

As under Trump’s first term, agencies can expect a wave of legal challenges—this time, in much greater numbers to match the scale of the likely regulatory rollback. Under the APA, amending or repealing a rule counts as a “rulemaking,”¹⁸ an activity subject to the Act’s significant procedural requirements. For deregulatory rules that change legal rights or obligations—as opposed to rules that function merely as “guidance”—agencies will ordinarily need to follow four steps.¹⁹ One, they will have to publish a notice of their proposal for amendment or rescission. Two, they will have to create an opportunity for public comment. Three, they will have to formulate a statement of the “basis and purpose” of their regulatory rollback—a statement that will become a critical part of the record when the rollback is challenged in court. Finally, they will have to publish their amendment or rescission as a final rule.

Many of the challengers will be the expected ones: environmental and public interest groups, as well as attorneys general in the blue states, who will follow the example set by Texas and other red states in devoting significant effort to challenging Biden administration initiatives in court. Yet other challengers may prove surprising. Some businesses that have invested heavily in complying with the rules to be rescinded may be upset enough to challenge the rescissions in court, if only to protect their competitive advantage other over firms, especially newer firms, not yet in compliance. Other businesses may stand to lose real money from the rollbacks of rules that also benefit the broad public.

Although Musk and Ramaswamy have claimed that the rescission list will be based on West Virginia vs. EPA and Loper Bright, it is highly unlikely that Trump 2.0 can remove anything close to 50 percent of the rules on the books using only these legal precedents. That is because West Virginia v. EPA supports invalidation of rules only where agencies have exceeded their statutory authority, while Loper Bright explicitly grandfathered existing rules earlier upheld on Chevron deference from its holding applicable to new rules, including rescissions.  (“Chevron deference” refers to the requirement, imposed by the Supreme Court’s 1984 Chevron decision,²⁰ that a reviewing judge uphold a reasonable agency interpretation of a legally ambiguous authorizing statute, even when the judge might have interpreted the agency’s statute differently.)

A recent Sixth Circuit decision invalidating the Federal Communications Commission’s (FCC) net neutrality regulations took explicit note of this limitation. Although the Supreme Court in 2005 upheld a version of the FCC’s rules on broadband internet access, giving the FCC Chevron deference,²¹ the Court had not previously signed off on the specific 2024 order the Sixth Circuit currently had under review.²² Otherwise, the Sixth Circuit would have had to respect Loper Bright’s grandfathering of existing rules that had been litigated earlier.

In addition, lower courts have recognized that Loper Bright did not abandon the idea of deferring to agencies altogether. Recognizing that issues of interpretation may be presented that fall within an agency’s specialized expertise, the Loper Bright Court preserved what is known as Skidmore deference. Under the 1944 Skidmore case:

[T]he “interpretations and opinions” of the relevant agency, “made in pursuance of official duty” and “based upon … specialized experience,’” “constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,” even on legal questions. “The weight of such a judgment in a particular case,” the Court observed, would “depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”²³

In other words, the Skidmore case advised lower courts to remain open-minded in reviewing how agencies interpret their statutes and take account of the kinds of factors that might convince the court of the agency’s correctness. A court might consider, for example, whether the agency has consistently maintained its challenged interpretation, whether its interpretation followed a systematic deliberation within the agency, and whether proper understanding of the statutory language might call for specialized expertise that the agency is more likely than a court to possess. The Loper Bright Court did not discount deference of this kind: “[agency legal] interpretations ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance’ consistent with the APA.”²⁴ There is already evidence from lower courts that this lesser form of deference to agencies may weigh in favor of legal interpretations that Trump appointees are hoping to challenge.²⁵ (And, of course, to the extent it is now the Trump 2.0 agencies offering their own interpretations of their governing statutes, the loss of Chevron deference now works against them.)

DOGE thus may find that, despite its ambitions, not enough rules can be rescinded based on “major questions” or inappropriate deference criteria, as established by the two recent Supreme Court rulings.  So, if DOGE is as serious about regulatory housecleaning as Musk and Ramaswamy have claimed, Trump 2.0. may have to rescind or revise existing rules on policy grounds. That is, the Trump administration may have to point to changed circumstances since certain rules were issued or identify errors earlier committed and argue that the rules can no longer be justified based upon all the data and analysis now available to the agency.

If the Trump administration seeks sweeping deregulation based on such policy-based criteria rather than claiming that the agency lacked the legal authority to issues these rules, the judicial review provisions of the APA will likely hamper their progress. Since 1981, executive branch regulatory agencies (excluding the so-called “independents”) such as the EPA, the Occupational Safety and Health Administration (OSHA), and the Food and Drug Administration (FDA) have had to comply with requirements for cost-benefit analysis overseen by the Office of Management and Budget (OMB). President Reagan created the requirements through executive order,²⁶ and presidents of both parties have now consistently followed the Clinton administration’s rewrite of the order²⁷ which changed some of the mechanics but kept the “regulatory analysis” requirement in place. A regulatory analysis is essentially a benefit-cost analysis, typically pursued before the APA-required public comment period launches and before a rule, including a rescission, is issued in final form. Unless prohibited by the statute undergirding the agency’s proposed regulation, its regulatory analysis must show that a new rule, including a rescission, generates greater benefits than costs. As a result, the record of any significant executive agency rule that the Trump administration would now like to rescind is likely to include some robust earlier analysis explaining how the rule advances the purposes of its underlying statute and how it does so in a sensible, cost-sensitive way. President Trump could issue a new executive order exempting his own rules, including rescissions, from this requirement. But even then, under the APA the agencies still must be able to demonstrate why the rescissions are not “arbitrary and capricious.”²⁸

Meeting the “arbitrary and capricious” standard involves what has come to be called “hard-look” review in federal court. When an agency rule is challenged as unsound, the agency must demonstrate that, at the time it acted, it had considered all legally relevant factors, gave reasonable consideration to important aspects of the problems presented, entertained important alternative solutions, and responded to significant issues raised to the agency’s attention during the public comment period.²⁹

The “arbitrary and capricious” standard limited Trump’s prior deregulatory efforts. For example, when the Trump 1.0 Federal Railroad Administration proposed to withdraw an Obama-era notice of proposed rulemaking (NPRM) that would have required two railroad crew members for all railroad operations, the measure was invalidated by the Ninth Circuit. The court found that the challenged withdrawal “fails to address the multiple safety concerns raised by the majority of the comments on the NPRM.”³⁰ Likewise, a federal district court in California recently vacated a Trump 1.0 rule out of the Agriculture Department’s Animal and Plant Health Inspection Service (APHIS) that declined to regulate genetically engineered plants pursuant to its authority to regulate noxious weeds. The court found that the final rule did “not address a single one of [several] issues” raised in public comments.³¹

The trial court opinion in the genetically engineered weeds case struck two additional cautionary notes that may be of particular relevance to DOGE’s AI-fueled ambitions. First, courts are unlikely to accept merely conclusory statements that an algorithm has identified a rule as suspicious. Reviewing the APHIS record, the court said: “[T]he agency’s perceptions and beliefs are of little moment when … they are asserted as fiat untethered to a clear and sound analysis.”³² Furthermore, aggressive attempts to repeal old rules may have to provide reasons for rejecting the expert analyses supporting the rules under review. Again, in response to this particular episode of attempted deregulation, the trial court said: “An agency conclusion that is in ‘direct conflict with the conclusion of its own experts’ … is arbitrary and capricious.”³³

In short, whether Trump 2.0 rescissions purport to be based on new statutory interpretations or to reflect new policy determinations, the process will be time-consuming, especially when rescissions are challenged in court. Moreover, if the Trump 1.0 pattern is any guide, it is likely that many of the rescissions under the second Trump administration will be voided by the judiciary. Two examples from the past illustrate how this can happen and the time it can take for the result to be known. 

The “Clean Power Plan” issued by the Obama EPA in 2015, which gave rise to the Supreme Court’s West Virginia v. EPA opinion, illustrates the long and tortuous path that can lie ahead for rules rescinded because they allegedly were issued without statutory authority. The Clean Power regulations set state-specific greenhouse gas emissions reductions from their coal-fired electricity generating plants. Although the Trump administration announced in 2017³⁴ that it planned to rescind the Obama rule, it took almost two years for the EPA to come up with a replacement: the Affordable Clean Energy (ACE) Rule.³⁵ Multiple states challenged the Trump rule, winning before the D.C. Circuit Court of Appeals in 2019. While the Biden EPA gained that court’s approval to revise the original Obama rule, the D.C. Circuit’s opinion rejecting the Trump rescission wound up at the Supreme Court, resulting in the Court’s ruling in West Virginia v. EPA in 2022. Invoking the “major questions doctrine,” the Court ruled that the Obama EPA never had the congressional authority in the first place to issue the Clean Power plan. The lesson: It took six years from start to finish for just one (albeit major) rule to be wiped off the books.

But that’s not the end of the Clean Power Plan story. After losing in West Virginia v. EPA, the Biden EPA issued a revised rule requiring existing coal and new natural gas-fired plants to reduce emissions by various means, including by capturing and storing carbon dioxide. That new rule was challenged by a number of states and industry groups. On October 16, 2024, the Supreme Court declined to pause enforcement of the rule, while the D.C. Circuit has it under review.³⁶ It is widely expected that this rule, too, will be on the chopping block when President Trump returns to office. But it is not evident that undoing it will be any less time- and labor-intensive than the effort undertaken by the Trump 1.0 EPA.

A second example, a rule rescinded on policy grounds, illustrates not only the time required for courts to decide if rescissions are lawful but also that rescissions can cause far greater harm than good. In 1981, shortly after Ronald Reagan assumed the presidency, his administration announced that it would delay implementation of the Carter administration’s “passive restraint” rule for cars, requiring automakers to install either automatic seat belts or airbags, to bolster the financial fortunes of the then-struggling U.S. auto industry. Several months later, the National Highway Traffic and Safety Administration (NHTSA) announced it was proposing to rescind the rule altogether, which the agency did in October 1981. NHTSA justified the rescission on the basis of “changed circumstances,” namely, plans by auto manufacturers to allow drivers to detach the automatic seat belts, which NHTSA pointed to in asserting that requiring their installation would needlessly impose $1 billion in costs for essentially no benefits. The Carter NHTSA had estimated that, once fully phased in, the passive restraint rule would save 9,000 lives annually.³⁷

As one of the largest auto insurers that stood to suffer substantially more claims for bodily damage without such protection mandated, insurance company State Farm opposed rescission of the passive restraint rule. First, it sponsored a series of studies by Yale economist William Nordhaus (who would later win a Nobel Prize for his economic modelling of the impact of climate change) showing that the original rule would produce benefits far outweighing costs.³⁸ After NHTSA rejected the Nordhaus analysis and rescinded the rule, State Farm sued, claiming that the rescission was arbitrary and capricious. State Farm won before the D.C. Circuit of Appeals (where one of the co-authors, Litan, was on State Farm’s brief, along with Merrick Garland) and then won again before the Supreme Court in a unanimous decision. Among the Court’s holdings: NHTSA had failed to consider the alternatives of mandating airbags or non-detachable seat belts, and an “agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”³⁹ Even with the occasional problems of malfunctioning airbags, NHTSA estimated that through 2017 airbags in cars had saved more than 50,000 lives.⁴⁰

We believe there are many existing rules like the NHTSA’s passive restraint rule that deliver benefits to the public outweighing their costs. This seems especially likely because executive orders have long required such benefit-cost balancing for significant rules. Even accounting for changed circumstances, which the Trump agencies may now invoke, may not change that calculus for many existing rules. The public stands to lose from their rescission.

Potential Trump strategies for widespread deregulation

Given the legal challenges and delays inherent in any broad rescission effort, the Trump administration may pursue one or both of the following strategies. First, DOGE may concentrate on rescinding many “non-significant” or minor rules where—because of low benefits, lack of interest by affected parties, or both—legal challenges are unlikely. In this way, the administration could take credit for eliminating hundreds or thousands of rules, even if individually, or even collectively, their economic impact may be small. 

Second, agencies under President Trump may roll back many significant rules in the presumed hope that rulings by lower courts, and perhaps the Supreme Court, will treat the rescissions more favorably than during Trump 1.0.

Our reading of the Supreme Court’s opinion in West Virginia v. EPA is that the current Supreme Court (or at least the six Republican appointees) may be more sympathetic with rescissions of rules with the largest compliance costs, since those are the rules that are most likely to meet the Court’s “major questions” test. For rescissions of rules not justified by West Virginia v. EPA but rather due to changed circumstances, the holdings of the unanimous State Farm ruling still should apply, which means that the administration will have to do its cost-benefit homework thoroughly to show that new circumstances actually justify rescission. Alternatively, the administration will have to hope that this Court weakens the State Farm precedent in some manner. Given the Court’s refusal in Loper Bright to show deference to agencies’ statutory interpretations, however, it would be incongruous for the Court in a future-litigated rescission case to give even more deference to an agency’s policymaking authority than it already has under the “arbitrary and capricious” standard of the APA.

Related to the rescission effort, it is widely anticipated that the incoming administration will reinstate Executive Orders 13,771⁴¹ and 13,777,⁴² issued during the first Trump administration. Under these Orders, the president established a “regulatory budget” aimed at ensuring that each rulemaking agency’s annual incremental cost of new regulations would be zero for FY 2017 and subject to cost caps that the Office of Management and Budget director would establish in the ensuing years.⁴³ The Trump administration estimated that its regulatory budget generated cumulative net inflation-adjusted cost savings over the 2017-2020 period of $200 billion in present value savings (summing annual savings across all regulatory activities, both new rules and rescissions, discounted for the time value of money).⁴⁴ One independent analysis by the American Action Forum (AAF), which broadly supported the Trump 1.0 deregulatory effort, calculated the net present value savings a bit lower, in the $155 billion to $165 billion range.⁴⁵ That same independent study, however, criticized the administration’s tally for a lack of transparency, failing to “to make public the accounted value of each action, making it impossible to compare those values with what was published in the Federal Register (especially since Federal Register values were not official).”⁴⁶

President Biden rescinded the Trump regulatory budget with his Executive Order 13,992.⁴⁷ Given the much larger rescission-to-new-rule ratio of 10:1 potentially established for Trump 2.0, it would not be surprising if the forthcoming Trump regulatory budget not only results in but mandates annual net savings across all new regulatory actions, meaning that the incremental costs of new regulation net of rescissions will be required to reduce total annual compliance costs—without, of course, taking account of what happens to benefits. It remains to be seen whether the calculations of claimed savings from the Trump 2.0 regulatory budget will be more transparent than those claimed by the first Trump administration.

Could Congress make rescissions any easier?

Whether or not any of the Trump rescissions lose at the Supreme Court, it would not be surprising if his administration mounts an effort in Congress to amend the APA to set a lower legal standard for rescissions. History and Congressional math would not be on their side, however, even if Republicans manage to maintain control of both Congressional chambers in the 2026 mid-term elections.⁴⁸

Multiple efforts to amend the APA to tighten up the regulatory process or subject it to greater Congressional control have failed, including efforts following the 1994 midterm elections in which Republicans gained control of both Houses of Congress for the first time in recent decades. For example, various attempts to require agencies to conduct a cost-benefit analysis before issuing final rules (essentially enacting the various executive orders requiring regulatory analysis) have not passed Congress. Various proposals requiring more transparency in rulemaking have failed to surmount objections that more “sunshine” would impede decisionmaking. And the “REINS Act” (Regulations from the Executive in Need of Scrutiny Act),” first introduced in 2011, which would require Congressional approval of all major rules before they go into effect, has also failed to be enacted.

One of the few amendments to the administrative process to make it through Congress and signed into law is the Congressional Review Act of 1996 (CRA),⁴⁹ which enables Congress to review and prevent major rules from becoming law if both Congressional chambers object within a specified number of so-called “legislative days” from the issuance of a final major rule. It is widely expected that the new Congress, with both chambers now under Republican control and unlikely to face Trump vetoes, will invoke the CRA to prevent major regulations issued in the last months of the Biden administration from going into effect. Potential rules on the CRA chopping block: a Department of Health and Human Services rule banning the sale of tobacco products to those under 21 years of age; an EPA rule that regulates methane emissions and creates an incentive program for petroleum waste reduction; a Consumer Financial Protection Bureau rule that protects personal financial data; and another EPA rule that improves regulation of lead and copper in water.⁵⁰

One alternative to revising the APA would be for the administration to compile a list of rules it wants Congress to eliminate and then, working with Republican Congressional leadership, presenting the full package to Congress for an up or down vote. A similar pprocedure has been successfully used to close military bases on multiple occasions.⁵¹

The Senate filibuster rule, which President Trump and new Senate Majority Leader John Thune have promised to maintain, however, rules out the “rescission list” idea or any major APA reform facilitating rescissions. Even if Republicans retain power in both Congressional chambers after the mid-terms, their majorities, especially in the House, are likely to remain narrow. Finding the 60 votes required in the Senate to close debate on non-budget-related legislation will likely be just as difficult as in the first two years of his second term.

Deregulation is not a subject today like the economic deregulation of the late 1970s and early 1980s (mounted primarily during the Carter administration, as was noted at his recent funeral), when a bipartisan consensus in Congress conspired to eliminate the regulation of prices and entry in the transportation business. The regulations on the books now almost universally take the form of “social regulation,” meant to address externalities or information asymmetries from private sector activity. Generally speaking, Democrats favor regulation of this type; Republicans oppose it.

The incoming Trump administration, building on the work that DOGE has announced it will undertake, plans to cut through this stalemate by rescinding rules through executive action (presumably coordinated with independent agencies). However, unless the Supreme Court makes it even easier for the administration to accomplish its rescission agenda than allowed for under West Virginia v. EPA and Loper Bright—an outcome that is unlikely for at least two years—the administration will find the rescission process more difficult than Musk and especially Ramaswamy have been claiming.

It is likely that West Virginia v. EPA and Loper Bright will justify far fewer rescissions than DOGE has been anticipating simply on the basis of statutory interpretation. Using policy justifications and invoking changed circumstances will be cumbersome and time-consuming; regulatory analysis will often likely suggest that the rules targeted for rescission currently benefit the public, on net. And sufficient Congressional votes to enact legislative changes that would grease the skids for a massive rescission effort almost certainly aren’t there.