Starting in 10 days, the Department of Health and Human Services (HHS) may begin slashing regulations it considers to be unlawful or to exceed the agency’s authority, according to a memorandum sent by the president on Wednesday.
Experts speculated the memorandum could rapidly diminish the number of federal healthcare regulations on the books.
The president said cutting regulations will lower costs for American consumers and businesses and promote economic growth and innovation. The memorandum follows a slew of deregulatory initiatives in the last few days, including a request for information from the Office of Management and Budget (OMB) on burdensome regulations and an order for the Federal Trade Commission (FTC) to seek out anticompetitive rules.
Under the deregulation memo, Trump writes that agency heads should identify unlawful regulations in accordance with a list of 10 Supreme Court decisions made since 2015. The chief decision that will impact healthcare is Loper Bright Enterprises v. Raimondo, which restricted agencies’ abilities to interpret laws by unwinding the longstanding Chevron deference.
“In recent years, the Supreme Court has issued a series of decisions that recognize appropriate constitutional boundaries on the power of unelected bureaucrats and that restore checks on unlawful agency actions,” the memorandum says. “Yet, despite these critical course corrections, unlawful regulations—often promulgated in reliance on now-superseded Supreme Court decisions—remain on the books.”
The HHS will cut “unlawful” regulations without a notice-and-comment period for the public to respond. Averting a public comment period is allowed under a “good cause” exception which allows agencies to avoid notice-and-comment rulemaking when the process is “impracticable, unnecessary or contrary to the public interest.”
According to the timeline in the memorandum, the vacating of regulations could start April 19. The memorandum builds on President Donald Trump’s Department of Government Efficiency (DOGE) executive order, which directed agency heads to identify unlawful regulations. The DOGE EO gave agency heads 60 days to identify the regulations, starting Feb. 19.
Those regulations, or portions of regulations, that were identified should immediately begin to be repealed April 19. The deregulatory initiative could help the administration achieve a goal to cut 10 regulations for every one that it promulgates.
Jeffrey Davis, health policy director at McDermott+, said that without having to go through the public comment period, agencies could immediately publish a notice in the Federal Register that regulations have been terminated.
Davis has written extensively on how the Trump administration could approach deregulation from a technical perspective. Most of the methods he had considered thus far included a public comment period, but Wednesday’s memorandum indicated that the process could be far swifter than he previously thought.
“In this memorandum, they're saying, actually, you can do this outside the rulemaking process,” Davis said. “I was always thinking about how they're going to achieve this huge deregulation initiative. …This seems to be saying that they're going to move speedily.”
Agency heads will have to provide reasoning for why the regulation was deemed unlawful. For regulations they initially identified but chose not to cut, the agencies must provide justification within 30 days.
FTC, DOJ to sniff out 'anti-competitive restraints'
A separate EO out of the White House yesterday added to the administration’s crusade against regulations, this time with a specific focus on competition.
Titled “Reducing Anti-Competitive Regulatory Barriers,” the action places FTC Chairman Andrew Ferguson and Attorney General Pam Bondi at the head of a hunt for regulations that “impose anti-competitive restraints or distortions on the operation of the free market.”
According to the order and a fact sheet, these can include regulations that facilitate market monopolies, bar new market participants with “unnecessary” requirements, “needlessly burden” agencies’ procurement or generally limit competition.
The order gives the heads of federal agencies 70 days to provide Ferguson and Bondi a list of such regulations and proposals on how to rescind or modify them, which the government would then pursue. Ferguson will also be able to add any other regulations not outlined by agency heads on the to-do list, according to the order.
Additionally, the FTC is instructed to open a 40-day request for information to hear of burdensome regulations from the public, relevant responses from which Ferguson would relay to the relevant agency. That request will be opened by April 19.
“The American people, more than any Federal official, know which regulations stifle entrepreneurship and economic growth,” the White House wrote in its fact sheet. “You are invited to tell us which regulations impede competition and should be changed or repealed.”
The effort outlined in the order mirrors that already underway within the Department of Justice’s Antitrust Division. Its Anticompetitive Regulations Task Force, launched in late March, is working across agencies and industries to spot and address potential instances of regulatory capture, an effort that could include comments on proposed state legislation and court filings in private litigation that involves regulation.
Similar to the FTC’s directive, the task force is also tapping public input via public comment period, which is set to close in late May. Additionally, the OMB launched its own request for information on deregulation just this week in line with the White House’s directive.