HHS Poised to Axe Regulations Purportedly Conflicting with Executive-Branch Stances

In just days, the U.S. Department of Health and Human Services (HHS) may begin eliminating regulations it deems unlawful or beyond its authority – that is according to a memo released by President Trump last week, which could swiftly reduce the number of federal healthcare regulations.

Essentially, the move revokes any regulations that conflict with the president’s priorities, bypassing the usual advance notice-and-public input process.

According to the President’s memo, HHS will eliminate “unlawful” regulations without the public notice-and-comment period, as it is permitted under a “good cause” exception that allows agencies to bypass the notice-and-comment process when it’s “impracticable, unnecessary, or contrary to the public interest.”

Agency heads must also explain why a regulation was considered unlawful. And for regulations they initially identified but decided not to repeal, the agencies must provide justification within 30 days.

The president stated that cutting regulations will lower costs for American consumers and businesses, and stimulate economic growth and innovation. It also aims to help the administration achieve its goal of cutting 10 regulations for every new one it introduces.

The deregulation memo follows several recent deregulatory actions, 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 identify anticompetitive rules.

It also builds on President Trump’s Department of Government Efficiency (DOGE) Executive Order, which instructed agency heads to identify unlawful regulations. That Order provided agency heads with 60 days to identify such regulations, starting just about a month ago, on Feb. 19.

In this new memo, agency leaders are instructed to advance a government-wide “review-and-repeal effort,” and identify unlawful regulations based on 10 U.S. Supreme Court decisions since 2015. The memo argues that the administration can proceed more discreetly since many existing regulations have been deemed illegal, and that the usual “notice-and-comment proceedings are unnecessary where repeal is mandated by law to align with a Supreme Court ruling.”

The key Court decision affecting healthcare is referred to as Loper Bright, a ruling that limits agencies’ ability to interpret laws by overturning the so-called Chevron deference, which allowed agencies primary discretion to interpret certain ambiguous federal laws and regulations instead of the courts.

The White House also referenced a ruling that introduced the “major questions doctrine,” which directs judges to assume that Congress does not grant agencies authority over issues with significant national economic and political implications. This doctrine’s inclusion could provide agency leaders with extensive discretion to revoke rules and regulations, including longstanding agency policies.

Additionally, to circumvent the standard public review process I mentioned previously, the president’s memo referred to a legal exception that mandates agencies to provide public notice detailing their rationale and legal authority for altering rules and regulations. It also permits stakeholders and the public to submit comments and suggest changes before rules are finalized. In other words, to rescind or repeal a rule, an agency must issue a new version to replace the old one.

Health policy experts have stated that bypassing the notice-and-public comment period allows agencies to promptly announce the termination of regulations. That directive is likely to face legal challenges, as critics argue that the approach may violate procedural norms and exclude important dissenting voices, such as civil rights advocates, labor unions, and environmentalist groups, from participating in the administration’s regulatory agenda.

While the deregulation memo is intended to streamline government operations and reduce regulatory burdens, it also raises concerns about transparency, legal compliance, and the potentially inconsistent application of federal agency discretion in the regulatory process.

Regardless, this executive policy is almost certain to alter the regulatory landscape in healthcare, so keep an eye on how this plays out, starting next Monday – it may impact you more than you think.

Reference Material

1. Directing the Repeal of Unlawful Regulations – The White House
2. Trump directs agencies to quietly repeal regulations — without public notice – POLITICO
3. New Trump orders could swiftly chop healthcare regulations