This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here.

Chevron is now in the dustbin of history, and the Senate Working Group’s Report establishes a blueprint for what Congress should do next.  One of my top priorities as General Counsel of DOGE was to leverage the Supreme Court’s decision in Loper Bright overturning Chevron for maximum deregulatory effect.  The Trump Administration has worked from day one to capitalize on that decision to jettison unlawful rules that fail to comport with their underlying statutory text.  Much has happened on deregulation.  Much more is coming.  And if Congress takes the field, the potential to fix our oppressive administrative state is limitless.

But the Supreme Court’s work is not done.  Now that Chevron is gone, the Justices should turn their attention to the most notorious administrative law decision that remains on the books—Motor Vehicle Manufacturers Ass’n v. State Farm Automobile Insurance Co.  Decided one year before Chevron, the Court’s decision in State Farm has been understood to require that agencies undergo the same elaborate review and analysis to repeal regulations that they undertake to promulgate them. 

This makes little sense.  Issuing regulations burdens private conduct.  The government is commanding people to do something or forbidding them from doing something.  Repealing regulations, by contrast, frees people to do as they choose.  Why should the government undergo an elaborate process to remove burdens on private conduct?

For now, it’s because State Farm seems to require it.  The case arose from the Reagan Administration’s efforts to repeal the Carter Administration’s deeply unpopular automatic seatbelt rules. Just months into the new Administration, President Reagan’s Transportation Secretary delayed the effective date of a rule requiring car manufacturers to install so-called “passive restraints.” But when the Administration attempted to fully repeal the unpopular requirement, the Supreme Court intervened.

The Supreme Court deemed the repeal “arbitrary and capricious” because the Administration did not sufficiently explain the reason for it. The Supreme Court scrutinized the agency’s cited evidence and chided the agency for failing to consider alternatives to the repeal. Ultimately, the Supreme Court ordered the agency to try again.

Ever since State Farm, courts have closely scrutinized regulatory repeals. Any missing discussion or errant reasoning can cause the whole repeal to come crumbling down.

That is wrong. A lower standard of judicial review should apply when an agency seeks to restore freedoms that a prior Administration took away.

Read correctly, State Farm does not preclude courts from applying a lower standard to most deregulation. The Court applied its searching standard of review only because the National Traffic and Motor Vehicle Safety Act imposed that standard of review on orders “revoking a Federal motor vehicle safety standard.” But outside the unique context of vehicle safety standards, the decision did not actually hold that such a searching standard is required.

Even though the Supreme Court’s language in State Farm is narrow, lower courts have long understood State Farm to apply to all regulatory rescissions. The Trump Administration has a few options to overcome this problem.

First, it could ask the Supreme Court to clarify that State Farm does not apply to all deregulation, or ask the Court to simply overrule State Farm entirely. Justice Rehnquist’s partial dissent in State Farm got it right. As he explained, “a change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency’s reappraisal of the costs and benefits of its programs and regulations.”[1] True, the agency must always follow Congress’s commands. But, in Justice Rehnquist’s words, “as long as the agency remains within the bounds established by Congress, it is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration.”[2]

Second, so long as State Farm survives, the Administration needs manpower to write regulations that survive rigorous judicial review. In the age of AI, the manpower required is probably less than it ever has been. But agencies still need human lawyers and human policy experts to do substantial work after capitalizing on all available AI tools.

The Administration has already deployed several strategies to maximize its human capital. For example, several agencies have convened deregulation task forces in which lawyers and policy experts co-locate and draft dozens of rescissions in a matter of days or weeks. This is much faster than the traditional process of pushing rescissions through layer after layer of bureaucratic review. We need more of this.

Third, the President can repeal regulations directly. Under longstanding Supreme Court precedent, courts may not enjoin the President. Nor is the President subject to the Administrative Procedure Act—the law that governs agency rulemaking. The agency implementing the repeal is subject to the APA, of course, but its rationale for effectuating the repeal is that the President directed the repeal—a perfectly rational reason.  This should enable the agency to avoid the misinterpretation of State Farm that has otherwise plagued deregulation.

President Trump has already ordered the repeal of at least one regulation. In March, the President directed the Department of Energy to repeal Obama- and Biden-era rules about showerhead water pressure. But there are many more rules ripe for rescission, and the President should continue to exercise his constitutional authority to eliminate them.

Using all of these tools, President Trump has begun to undo the decades of over-regulation that choked the economy. In partnership with the private sector, he will succeed. Then, in 2029 and long thereafter, we may look back at deregulation as one of the most important domestic accomplishments of the Trump presidency.

James Burnham is the founder and Managing Partner of King Street Legal, PLLC. He recently returned to King Street Legal after serving for six months as the General Counsel for the Department of Government Efficiency.

---

[1] Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part).

[2] Id.