TheCorporateCounsel.net

On Wednesday, the President issued a memo that gives more color to the “review & repeal” directive contemplated by Executive Order 14219 that was issued a few months ago. The memo says that all agency heads should prioritize regulations that could be struck down as overreach or otherwise unlawful under recent Supreme Court cases. Here’s the real kicker:

In 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 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.”

SEC Commissioner Caroline Crenshaw already dissented from the Commission’s decision to drop its defense of climate disclosure with no attempt at “notice & comment” repeal. Now, other rules could be on the chopping block. The memo refers specifically to these SCOTUS cases:

1. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024);
2. West Virginia v. EPA, 597 U.S. 697 (2022);
3. SEC v. Jarkesy, 603 U.S. 109 (2024);
4. Michigan v. EPA, 576 U.S. 743 (2015);
5. Sackett v. EPA, 598 U.S. 651 (2023);
6. Ohio v. EPA, 603 U.S. 279 (2024);
7. Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021);
8. Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023);
9. Carson v. Makin, 596 U.S. 767 (2022); and
10. Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020).

This Fact Sheet gives a paragraph on how the executive branch is interpreting each of those cases. From Politico:

The White House directive appears to claim that the high court’s 2024 ruling known as Loper Bright applies retroactively, although the court’s conservative justices held explicitly that the decision is forward-looking.

The SEC has been somewhat insulated from the fallout of the Loper Bright decision because courts haven’t given much deference to SEC rules in recent years anyway. But under this memo, things could get interesting – especially given some of Chair Atkins’ views on the PCAOB, Sarbanes-Oxley rules, shareholder proposals, and more. As John blogged when Loper Bright was issued, while the rollback of certain disclosure requirements could be happy news for companies in some ways, companies also should consider the business impact of the broader, government-wide deregulation effort. The Politico article predicts the memo will face legal challenges.

– Liz Dunshee