The Legality and Outcomes of Deregulatory Executive Orders

Spring 2025

Alex Borgas

Edited By: Lauren Kort

One of Trump’s running mottos leading up to his second election was “Drill Baby Drill”[1]. This saying made clear his intention to boost oil production and fossil fuel use in the United States in order to lower gas prices, but it is evident that this will ultimately result in a deregulated energy industry. The less restrictions the energy industry has, the fewer hoops that energy companies and the U.S. themselves have to go through in order to extract oil. However, these hoops are an important part of the fight to protect our environment, as they prevent big industries from exploiting our Earth in the name of profit. Congressional laws had long protected against the deregulation of the energy industry until Trump issued a series of executive orders aimed at rolling back these protections. In the first 100 days of his second term, Trump issued 135 executive orders, while his legislative branch signed into law only five bills, a record low for the past seven decades[2][3]. This push to expand executive power through the use of executive orders has created much confusion and conflict regarding the power of the executive, and ultimately these executive orders have spanned many areas. The issues of deregulation and executive orders overlap in two recent orders that aimed to remove as many restrictions as possible in the energy sector. Issued in February of 2025, executive order 14219, “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative,” asked government agencies to find and report potentially unlawful regulations[4]. The troubling part is a memo released on April 9th, asking agencies to remove these regulations without the typical public notification or input process required by the good cause exception of the Administrative Procedures Act[5]. On the same day that memo was released, the White House issued another executive order titled “Zero-Based Regulatory Budgeting To Unleash American Energy”[6]. This order sets a sunset clause on new and existing energy regulations, meaning that after a certain period of time these regulations expire automatically unless the agency extends it. These two executive orders represent a potentially troubling future, where mass deregulation happens without the public knowing whatsoever.

The motto “drill, baby, drill” was infamously championed by Trump during his pre-election campaign. It was a call to massively expand oil drilling in the United States via deregulating the energy industry in the hopes of lowering gas prices and unleashing American energy. Although there has been a net decrease in oil drilling since Trump’s presidency began, his promise to slash red lines and massively streamline environmental review has not fallen on the backburner[7]. This article will look at two particular executive orders that could result in deregulation while also contradicting previous precedent set by the courts.

Executive Order 14219, titled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative,” and issued on February 19th, is the first of these executive orders. It orders federal agencies to cooperate with the Department of Government Efficiency to address the “overbearing and burdensome administrative state” by identifying regulations that are to be either modified or rescinded in the future[8]. There are many criteria for which regulations are to be reported, but some of the most notable ask agency heads to find regulations “that impose significant costs upon private parties that are not outweighed by public benefits” or “that impose undue burdens on small business and impede private enterprise and entrepreneurship.” While this criteria makes sense at face value, it ignores the fact that these regulations were already deemed to be necessary and beneficial by congress when they were voted on and encoded into law. Additionally, a big emphasis is placed on the costs incurred by these regulations but it’s important to understand that the regulations were all established for the benefit of the public in the first place. Companies in the private sector are driven by profit, and in that pursuit of profit, it’s easy to overlook the common good if it means making shareholders more money. Trump has characterized regulations as being onerous and unnecessary, but it’s those very regulations that require, for example, certain safety standards and environmental protections be met. Although these rules cost money to comply with, they are necessary to protect the public interest, which in the end is the role of our government. It’s important to note that this is not the first executive order aimed at mass deregulation, though. On January 31st, Trump issued Executive Order 14192, titled “Unleashing Prosperity Through Deregulation,” which essentially ordered that for every new regulation added, 10 regulations should be removed[9]. Executive Order 14219 is particularly troubling, however, given the context of a subsequent memo released April 9th, titled “Directing the Repeal of Unlawful Regulations”[10]. This memo is regarding Executive Order 14219, and asks that all agency heads, except for military, national security, foreign affairs, or immigration-related agencies, remove unlawful regulations without a notice and comment period for the public. When an agency attempts to change or remove rules, standard procedure is to publish the notice-and-comment rulemaking process in the federal registrar, as indicated in Section 553 of the Administrative Procedure Act[11]. The public has a 30-60 day period to submit public comments on paper or electronically, and afterwards the agencies must review and consider the comments[12]. This process is extremely important in keeping the public in the loop and maintaining democratic accountability[13]. Trump’s memo orders agencies to cite the “good cause” exception when removing regulations, an exception that allows agencies to skip the notice-and-comment period when the process is “impracticable, unnecessary, or contrary to the public interest,” and the claim here is that enforcing these regulations is contrary to the public interest[14].

The second significant executive order concerns energy regulation in particular, and ultimately has the potential to upheave the energy sector as we know it. Executive Order 14270, titled “Zero-Based Regulatory Budgeting to Unleash American Energy,” was issued April 9th, the same day as the above-mentioned memo[15]. This executive order applies to mainly energy-related and environment-related agencies, including but not limited to the Environmental Protection Agency, the Bureau of Land Management, and the United States Fish and Wildlife Service. Each agency was given a list of previously established statutes that resulted in regulations of some kind, and those regulations must be issued a sunset rule[16]. Provided there are no extensions granted, the sunset rule mandates the automatic removal of a regulation after a year. Within that year, there must be a public comment period and a possibility of a request for information. This sunset provision also applies to any new regulations or amendments to existing regulations. The result is an unimaginable administrative burden placed on federal agencies for them to maintain rules already established by the law. Additionally, some of the statutes targeted in this order have been widely successful, such as the Endangered Species Act, which has safeguarded hundreds of species in the last 50 years[17]. Other important pieces of legislation at risk include the Clean Air and Water Acts, which have reduced premature deaths, increased quality of life, and spurred American innovation by protecting federal air and waters[18][19]. This Executive order risks arbitrarily slashing protections that legislators and politicians have worked hard to enshrine in our legal system. It is therefore not worth the prospective boost in American energy innovation, especially considering the numerous advancements in the energy sector over the last couple of decades.

With these considerations in mind, the executive orders issued by the Trump administration are neither warranted nor legal. Executive Order 14219’s memo asking agencies to skip the notice and comment phase according to the “good cause” exception blatantly contradicts the courts’ interpretation of this exception. In United States v Cain, the Sixth Circuit Court ruled that "the exception excuses notice and comment in emergency situations, or where delay could result in serious harm"[20]. Even in the case that these regulations were contrary to public interest, there is no factor of urgency that necessitates skipping the notice and comment process. This process is particularly important because it "helps ensure fair treatment for persons to be affected by regulation,” as per the Sixth Circuit Court in the above-mentioned case. As for Executive Order 14270, the sunset provisions are not grounded in the Administrative Procedure Act, which governs how regulations are enforced[21]. The statutes targeted by this Executive Order have already been codified into law by congress, so adding an expiration date to them is largely arbitrary. This order as a whole appears to be a misapplication of an economic policy forwarded by Elon Musk and his Department of Government Efficiency. “Zero-Based Budgeting” is a financial strategy pushed for by Elon Musk in which a company must continually re-justify its expenditures[22]. It does not make sense to copy and paste this philosophy into the realm of government regulations. Regulations should be removed, if necessary, in a nuanced and individualized manner. Instead, Trump’s approach adds to the chaos that federal agencies are already experiencing as a result of so many executive orders. Both of these executive orders functionally justify removing mass amounts of important regulations on a whim while excluding public input.

The ultimate goal of large scale deregulation has yet to be realized, but that does not mean that it won’t happen. Come October 2026, the sunset provisions found in Executive Order 14270 will expire, and it will be evident just how many regulations and rules are removed, along with the regulations that are to be removed as a result of Executive Order 14219. That being said, the outcome is reliant on the courts’ backing of the executive branch. The conservative majority in the Supreme Court is one reason to believe that Trump might be successful, but it’s not so clear cut[23]. The Supreme Court does not have a perfect record ruling in favor of the current administration, even if it is common. Recently the court ruled that Trump must facilitate the return of Kilmar Albrigo Garcia, a ruling very much contested by Trump’s administration[24]. Additionally, it seems that precedent is working against Trump, considering that sunset provisions are not a part of the Administrative Procedure Act and that the Good Cause exception is most commonly interpreted to apply during emergencies only. Finally, looking at Trump’s first term, we can see that his administration was largely unsuccessful at beating lawsuits regarding the administration’s use of federal agencies to implement its policies. In those instances of litigation, the outcome was unsuccessful for Trump over 75% of the time[25]. Given this legal context, only time will tell what the future of our government will look like. For now, staying informed and keeping up with the constant output of executive orders is most important in the hopes of holding our government accountable.

References

[1] Martínez, A, and H.J. Mai. “Trump Wants to ‘drill, Baby, Drill.’ What Does That Mean for Climate Concerns?” NPR, November 15, 2024. https://www.npr.org/2024/11/13/nx-s1-5181963/trump-promises-more-drilling-in-the-u-s-to-boost-fossil-fuel-production. 

[2] “2025 Donald J. Trump Executive Orders.” Federal Register. https://www.federalregister.gov/presidential-documents/executive-orders/donald-trump/2025. 

[3] Kapur, Sahil, and Scott Wong. “Trump Signs Few Laws in First 100 Days as He Pushes to Expand Executive Power.” NBC News, April 29, 2025. https://www.nbcnews.com/politics/congress/trump-signs-laws-first-100-days-pushes-expand-executive-power-rcna202208. 

[4] “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Regulatory Initiative.” The White House, February 19, 2025.  https://www.whitehouse.gov/presidential-actions/2025/02/ensuring-lawful-governance-and-implementing-the-presidents-department-of-government-efficiency-regulatory-initiative/. 

[5] “Directing the Repeal of Unlawful Regulations.” The White House, April 9, 2025. https://www.whitehouse.gov/presidential-actions/2025/04/directing-the-repeal-of-unlawful-regulations/. 

[6] “Zero-Based Regulatory Budgeting to Unleash American Energy.” The White House, April 9, 2025. https://www.whitehouse.gov/presidential-actions/2025/04/zero-based-regulatory-budgeting-to-unleash-american-energy/. 

[7] Pelton, Tom. “In an Ironic Twist, Drilling Has Declined under Trump’s ‘Drill, Baby, Drill.’” Oil and Gas Watch, May 8, 2025. https://news.oilandgaswatch.org/post/in-an-ironic-twist-drilling-has-declined-under-trumps-drill-baby-drill. 

[8] Ibid [See footnote 4].

[9] “Unleashing Prosperity through Deregulation.” The White House, January 31, 2025. https://www.whitehouse.gov/presidential-actions/2025/01/unleashing-prosperity-through-deregulation/. 

[10] Ibid [See footnote 5].

[11] “A Primer on the Informal Rulemaking Process.” Administrative Conference of the United States. https://www.acus.gov/article/primer-informal-rulemaking-process. 

[12] “Notice-and-Comment Rulemaking.” Administrative Conference of the United States, May 2021. https://www.acus.gov/sites/default/files/documents/IIB014-Rulemaking.pdf. 

[13] Stern, Rephael. “The Lost English Roots of Notice-and-Comment Rulemaking.” The Yale Law Journal, April 2025. https://www.yalelawjournal.org/article/the-lost-english-roots-of-notice-and-comment-rulemaking. 

[14] “The Good Cause Exception to Notice and Comment Rulemaking: Judicial Review of Agency Action.” Library of Congress. https://www.congress.gov/crs-product/R44356 

[15] Ibid [See footnote 6].

[16] Frazin, Rachel. “Trump Orders Agencies to ‘sunset’ Environmental Protections.” The Hill, April 10, 2025. https://thehill.com/policy/energy-environment/5242921-trump-executive-order-environmental-protections-sunset/. 

[17] Brigida, Danielle. “Endangered Species Act: 50 Years of Success in Conservation.” World Wildlife Fund, December 20, 2023. https://www.worldwildlife.org/stories/celebrating-50-years-of-the-endangered-species-act. 

[18] “The Clean Air Act and the Economy.” EPA. https://www.epa.gov/clean-air-act-overview/clean-air-act-and-economy. 

[19] “Summary of the Clean Water Act.” EPA. https://www.epa.gov/laws-regulations/summary-clean-water-act. 

[20] Paynter, Nathanael. “Flexibility and Public Participation: Refining the Administrative Procedure Act’s Good Cause Exception.” University of Chicago Legal Forum. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1486&context=uclf. 

[21] Bense, Kiley. “New Trump Administration Directives to Repeal Environmental Regulations En Masse Make ‘no Sense,’ Legal Experts Say.” Inside Climate News, April 12, 2025. https://insideclimatenews.org/news/12042025/new-trump-administration-directives-to-repeal-environmental-regulations-en-masse-make-no-sense-legal-experts-say/. 

[22] Stein et al. “In chaotic Washington blitz, Elon Musk’s ultimate goal becomes clear.” Washington Post, February 8, 2025. https://www.washingtonpost.com/business/2025/02/08/doge-musk-goals/. 

[23] Bonventre, Vincent. “6 to 3: The Impact of the Supreme Court’s Conservative Super-Majority.” New York State Bar Association, October 31, 2023. https://nysba.org/6-to-3-the-impact-of-the-supreme-courts-conservative-super-majority 

[24] Hurley, Lawrence. “Supreme Court Says Trump Admin Must ‘facilitate’ Release of Man Wrongly Deported to El Salvador Prison.” NBC, April 10, 2025. https://www.nbcnews.com/politics/supreme-court/supreme-court-trump-admin-must-facilitate-release-kilmar-abrego-garcia-rcna200284. 

[25] “Roundup: Trump-Era Agency Policy in the Courts.” Institute for Policy Integrity. https://policyintegrity.org/trump-court-roundup.