Last week, President Trump issued an executive order “Ensuring Lawful Governance and Implementing the President’s ‘Department Of Government Efficiency’ Deregulatory Initiative.” “This is one of those executive orders that we may not have ever thought of, but it’s the one we’ve all been waiting on,” gushed Family Research Council Action President Jody Hice while guest hosting on “Washington Watch.”

The order aims “to focus the executive branch’s limited enforcement resources on regulations squarely authorized by constitutional Federal statutes, and to commence the deconstruction of the overbearing and burdensome administrative state.”

It assigns all executive agencies the task of cataloguing, within 60 days, all their regulations that:

• “raise serious constitutional difficulties, such as exceeding the scope of the power vested in the Federal Government by the Constitution;”
• “are based on unlawful delegations of legislative power;”
• “are based on anything other than the best reading of the underlying statutory authority or prohibition;”
• “implicate matters of social, political, or economic significance that are not authorized by clear statutory authority;”
• “impose significant costs upon private parties that are not outweighed by public benefits;”
• “harm the national interest by significantly and unjustifiably impeding technological innovation, infrastructure development, disaster response, inflation reduction, research and development, economic development, energy production, land use, and foreign policy objectives;” and
• “impose undue burdens on small business and impede private enterprise and entrepreneurship.”

“Subject to their paramount obligation to discharge their legal obligations, protect public safety, and advance the national interest,” the order continues, “agencies shall preserve their limited enforcement resources by generally de-prioritizing actions to enforce regulations that are based on anything other than the best reading of a statute and … go beyond the powers vested in the Federal Government by the Constitution.”

The order also directs Trump-appointed agency heads, “on a case-by-case basis and as appropriate and consistent with applicable law,” to “direct the termination of all such enforcement proceedings that do not comply with the Constitution, laws, or Administration policy.”

“What it really means is that every agency is required to do a review of the constitutionality and the consistency with statutory authority of all of their regulations and basically check under the hood and figure out whether or not [they’ve] been driving a lawful agency or not, or whether or not there’s a lot of junk in there that needs to be removed,” said Donald Kochan, law professor at George Mason University’s Antonin Scalia School of Law.

“I think we’re going to find a lot of regulations that simply do not comply with both their statutory and constitutional limits,” Kochan predicted. “Because we’ve been operating under a regime in the administrative state for a long time … which allowed for high deference to agency interpretations of their own authority.” This was called “Chevron deference” after the 1984 Supreme Court decision which established this permissive standard, Chevron v. Natural Resources Defense Council.

However, the Supreme Court overturned the Chevron precedent in a June 2024 decision, Loper Bright Enterprises v. Raimondo, Kochan explained. “That decision … says that now judges have … a judicial duty to interpret what the statutes mean … rather than asking, ‘Hey, agency, are you authorized to act?’” he explained. “Because the incentives for the agency are to, of course, justify their own authority. So, for decades, we’ve been operating under this self-perpetuating set of precedents that allow agencies to justify their own interpretation of their underlying statutes.”

This long-needed court corrective was brought to you by President Trump’s previous term in office, during which he appointed three of the Supreme Court justices who participated in the 6-2 majority in Loper Bright.

The same goes for the 6-3 decision in Corner Post v. Board of Governors of the Federal Reserve System, which also curtailed executive agency power in the 2024 term, Kochan continued. According to Corner Post, “if you’re aggrieved by an agency action, you get to sue the agency and make a facial challenge to the agency’s rules, even years after that rulemaking occurred,” he explained. “Why? Because you didn’t know that it was going to affect you until you’re actually aggrieved. So, the U.S. Supreme Court reinterpreted what it means to have a statute of limitations … which opens up a lot of agency regulations to … challenge.”

Another relevant ruling is the Supreme Court’s 6-3 decision in West Virginia v. EPA (2022), which “clarified what’s called the Major Questions Doctrine,” added Kochan. “This one says that, if agencies want to do things that touch on significant issues that impact the economy or society, then the courts are going to presume that Congress would have needed to legislate in a very clear manner to give the agency that authority. If there’s not clear authority, [they’re] not going to let the agency go and grab it.”

According to George Washington University’s Regulatory Studies Center, the number of economically significant or otherwise significant rules published by executive agencies each year has approximately tripled since the Reagan administration, with the Biden administration issuing nearly 75 such rules each year.

These major Supreme Court decisions, issued largely in response to the Biden administration’s executive overreach, had obvious implications for the discretion and power of federal agencies. But, rather than wait for states or private actors to explore those implications by challenging individual regulations here or there, President Trump’s executive order instructs federal agencies to pull their hulls into drydock and perform a thorough overhaul.

“Every agency has to determine whether or not their every existing regulation is within their statutory authority, according to how the statutory authority would be interpreted by courts,” Kochan summarized. “The executive order says ‘the best interpretation’ of your statutory authority, which requires that the agencies look at, ‘Well, what would the courts say?’” No longer may executive agencies play the role of their own judge and jury.

Naturally, tussling with D.C.’s largest swamp monster will only succeed after a loud, laborious struggle. Various species in Washington that — unlike the American taxpayer — enjoy a symbiotic relationship with the administrative state have already begun to cry bloody murder.

On Thursday, a Politico article complained that Trump’s “sweeping” and “broadly written” order “stands to dramatically curb” agency power. This, the article alleges, is part of the president’s “quest to expand his authority over the federal government, which he believes has grown too expansive.” How scary!

Demanding that unelected bureaucrats follow the law might raise Washington’s blood pressure, but executive orders like this one are a major reason why a record number of Americans believe the country is on the right track.

“Like with everything else that’s happening right now, we’re in in rapid action mode,” concluded Kochan. “This is an executive order which really is at the heart of what executive orders are intended to be, and that is … instructing agencies to get their house in order.”