The 60-Day Regulatory Review stands as a pivotal tool in the ongoing debate over the scope and legitimacy of federal regulations. In the current legal and political climate, the review process has become a key mechanism for identifying and repealing unlawful regulations that may have overstepped statutory or constitutional boundaries. The renewed focus on this review period, especially under recent executive orders and Supreme Court decisions, signals a concerted effort to restore the constitutional separation of powers and rein in what many see as an overbearing administrative state. For legal professionals, policymakers, and regulated industries, understanding the legal framework for identifying unlawful regulations during this 60-day window is essential to navigating the shifting sands of federal regulatory policy.
The origins of the 60-day regulatory review can be traced to the executive branch’s authority to manage and oversee the implementation of federal regulations. Traditionally, new administrations have used regulatory freezes and review periods to pause, evaluate, and potentially reverse the previous administration’s rules. However, the current approach, as articulated in recent executive actions, is more aggressive and targeted. The explicit mandate is to focus enforcement resources on regulations squarely authorized by constitutional federal statutes, and to begin the deconstruction of the administrative state where it has strayed beyond its legal limits. This approach is rooted in a conservative legal philosophy that prioritizes textual fidelity to statutes and the Constitution, emphasizing the dangers of regulatory overreach and the erosion of democratic accountability.
Central to the legal framework for identifying unlawful regulations is the requirement that agency heads, in coordination with the Office of Management and Budget and the Department of Government Efficiency, conduct a comprehensive review of all regulations within their jurisdiction. This review is not merely a bureaucratic exercise; it is a substantive legal audit, designed to identify regulations that are unconstitutional, based on unlawful delegations of legislative power, or otherwise inconsistent with statutory authority. The process is informed by a series of watershed Supreme Court decisions that have redefined the boundaries of agency power and clarified the standards for lawful rulemaking.
Among the most influential of these decisions is Loper Bright Enterprises v. Raimondo, which narrowed the scope of judicial deference to agency interpretations of statutes. This decision, along with others such as West Virginia v. EPA and SEC v. Jarkesy, has recalibrated the balance of power between the branches of government and underscored the judiciary’s role in checking administrative excess. Agencies are now tasked with reviewing their regulations in light of these precedents, ensuring that each rule is firmly grounded in statutory text and does not rest on an expansive or novel interpretation of agency authority.
The 60-day review period is not merely a pause for reflection; it is an action-oriented window within which agencies must identify, document, and begin the process of repealing regulations that fail to meet these heightened legal standards. The process is further accelerated by the directive to use the “good cause” exception under the Administrative Procedure Act, allowing agencies to bypass the traditional notice-and-comment rulemaking process when immediate repeal is necessary to comply with Supreme Court rulings or statutory mandates. This legal shortcut is justified on the grounds that retaining and enforcing facially unlawful regulations is contrary to the public interest and that prompt action is required to restore legal order.
For regulated industries, the implications of the 60-day regulatory review are profound. The rapid pace of review and repeal means that entire compliance regimes can shift virtually overnight, requiring companies to stay agile and informed. Legal counsel must be prepared to advise clients on the changing regulatory landscape, anticipate potential challenges, and engage in advocacy to ensure that legitimate interests are protected. The review process also opens the door to litigation, as affected parties may seek judicial review of agency decisions to repeal or retain particular regulations. The courts, in turn, are likely to play a central role in resolving disputes over the lawfulness of agency actions, especially as the boundaries of the “good cause” exception and the proper scope of judicial deference continue to evolve.
At the heart of the legal framework for identifying unlawful regulations is a renewed emphasis on the constitutional separation of powers. The executive order underpinning the current review process explicitly states that ending federal overreach and restoring this separation is a top priority. This reflects a broader philosophical shift toward limiting the power of unelected bureaucrats and returning legislative authority to Congress, where it belongs under the Constitution. By requiring agencies to justify their regulations with clear statutory authority and to repeal those that exceed their mandate, the review process seeks to reestablish the proper balance between the branches of government.
The criteria for identifying unlawful regulations during the 60-day review are both specific and expansive. Agencies are directed to flag regulations that are unconstitutional, that raise serious constitutional difficulties, or that are based on unlawful delegations of legislative power. This includes rules that exceed the scope of federal authority, infringe on individual rights protected by the Constitution, or rely on interpretations of statutes that have been rejected by the courts. The review also targets regulations that impose costs not justified by public benefits, that are inconsistent with recent Supreme Court decisions, or that rest on outdated or erroneous factual assumptions.
The influence of Supreme Court precedent in this process cannot be overstated. The 60-day review specifically references ten landmark decisions as the framework for evaluating the lawfulness of existing regulations. These cases address a range of issues, from the proper interpretation of environmental statutes to the limits of agency enforcement authority and the protection of property rights under the Takings Clause. By grounding the review in these decisions, the administration signals its intent to align regulatory policy with the latest judicial guidance and to correct course where agencies have previously relied on now-superseded legal interpretations.
The mechanics of the regulatory review process are designed for efficiency and accountability. Agencies are required to submit a list of regulations identified as potentially unlawful within the 60-day window, along with a rationale for each determination. For regulations not targeted for immediate repeal, agencies must provide a summary explaining why repeal is not warranted, ensuring that decisions are transparent and subject to oversight. This process is overseen by the Office of Information and Regulatory Affairs, which plays a central role in coordinating and monitoring agency compliance with the executive order.
The use of the “good cause” exception under the Administrative Procedure Act is a notable feature of the current approach. Traditionally, repealing a regulation requires a lengthy notice-and-comment process, giving stakeholders an opportunity to weigh in. However, when a regulation is deemed facially unlawful-such as when it directly contradicts a Supreme Court ruling or exceeds clear statutory limits-agencies are authorized to act swiftly, dispensing with the usual procedural requirements. This reflects a pragmatic recognition that the public interest is not served by retaining rules that are plainly invalid, and that prompt correction is necessary to maintain the integrity of the legal system.
Of course, the accelerated pace of the 60-day regulatory review is not without controversy. Critics argue that bypassing notice-and-comment procedures undermines transparency and public participation, while supporters contend that it is a necessary corrective to years of regulatory overreach. The legal justification for this approach rests on the premise that agencies have both the authority and the obligation to align their rules with binding judicial precedent and statutory mandates. Where the law is clear, delay is not only unnecessary but potentially harmful.
The broader context for the current regulatory review is a political and legal environment marked by skepticism toward the administrative state. The conservative legal movement has long argued that agencies have accumulated too much power, often at the expense of democratic accountability and individual liberty. Recent executive actions reflect this skepticism, seeking to roll back regulations that are seen as burdensome, unnecessary, or outside the proper scope of federal authority. The legal framework for identifying unlawful regulations during the 60-day review is thus part of a larger project to restore constitutional government and reinvigorate the rule of law.
For legal practitioners, the implications are far-reaching. The rapid pace of regulatory change requires constant vigilance and adaptability, as rules that have long been settled may suddenly be called into question. Attorneys must be prepared to advise clients on the risks and opportunities presented by the review process, to engage in advocacy where necessary, and to participate in litigation that may arise from contested agency actions. The evolving standards for judicial review and the use of procedural shortcuts like the “good cause” exception add layers of complexity to an already challenging landscape.
The 60-day regulatory review also has significant implications for the relationship between the executive and legislative branches. By requiring agencies to justify their regulations with reference to clear statutory authority, the process reinforces the principle that Congress-not the executive-makes the laws. This serves as a check on agency power and a reminder that regulatory authority must be exercised within the bounds set by elected representatives. At the same time, the process highlights the challenges of modern governance, where complex policy issues often require specialized expertise and rapid response.
In practice, the success of the legal framework for identifying unlawful regulations will depend on the rigor and integrity of the review process. Agencies must conduct thorough legal analyses, consult with the Department of Justice and other relevant authorities, and ensure that their decisions are well-documented and defensible. The risk of litigation is ever-present, as affected parties may challenge agency determinations or seek judicial review of regulatory repeals. The courts will play a critical role in adjudicating these disputes and in clarifying the standards for lawful rulemaking.
The intersection of regulatory policy and judicial oversight is particularly salient in the current environment. The Supreme Court’s willingness to scrutinize agency actions and to enforce constitutional and statutory limits has emboldened efforts to roll back the administrative state. At the same time, the executive branch’s use of the 60-day regulatory review as a tool for deregulation reflects a broader shift toward a more constrained and accountable regulatory regime. The interplay between these forces will shape the future of administrative law and the balance of power in the federal government.
The legal framework for identifying unlawful regulations during the 60-day review period is thus a microcosm of larger debates about the role of the administrative state, the separation of powers, and the proper scope of federal authority. By grounding regulatory policy in constitutional principles and Supreme Court precedent, the review process seeks to restore the rule of law and to ensure that agencies act within their lawful mandate. For those engaged in the practice of administrative law, the current moment offers both challenges and opportunities, as the contours of regulatory authority are redrawn and the boundaries of lawful governance are reaffirmed.
As the process unfolds, attention will turn to the practical effects of deregulation on the economy, public health, and the environment. Proponents argue that rolling back unlawful regulations will spur innovation, reduce compliance costs, and unleash economic growth. Critics warn of the risks of under-regulation and the potential for harm to vulnerable populations. The legal profession will play a central role in mediating these debates, ensuring that the rule of law is upheld and that the interests of all stakeholders are represented.
Ultimately, the 60-day regulatory review is a testament to the enduring importance of constitutional government and the rule of law. By insisting that regulations be firmly rooted in statutory and constitutional authority, the process reaffirms the foundational principles of American democracy. As agencies, courts, and stakeholders navigate this new landscape, the guiding star remains the same: fidelity to the law, respect for the separation of powers, and a commitment to accountable governance. In this way, the legal framework for identifying unlawful regulations serves not only as a technical exercise in administrative law, but as a vital safeguard of liberty and the constitutional order.
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