The deregulatory goals of the 1-in-10-out directive may be stymied by agency gaming and legal challenges.
Just over a week after taking office for the second time, President Donald J. Trump issued an executive order entitled “Unleashing Prosperity Through Deregulation.” The most eye-catching provision of the order directs agencies to repeal at least 10 existing rules when they issue one new rule.
The directive’s predecessor in the first Trump Administration—which directed agencies to repeal only two rules for each new one—was met with criticism and an immediate legal challenge, which failed on procedural grounds. Although the Administration promises a more significant reshaping of agency work with the 1-in-10-out provision, it will not likely result in meaningful deregulation.
To be sure, the burden of rescinding 10 rules for each one issued may lead to deregulation by spurring agencies to slow significantly their issuing of new rules. And when agencies do issue rules, the rescissions will mean that far more rules will be removed from the books.
But for two reasons, the 1-in-10-out directive is more accurately viewed as a flashy statement, not a serious deregulatory measure. First, agencies can comply with the order by gaming their decision-making to avoid repealing consequential rules. Second, when agencies do identify consequential rules to repeal, they will need to face the legal challenges that will often follow. Legal challenges could reduce the directive’s effectiveness by leading agencies to avoid repeals that may not stand in court. When agencies do repeal rules, courts can set them, also reducing the directive’s effectiveness.
The 1-in-10-out directive defines “rules” broadly to include “memoranda, administrative orders, guidance documents, policy statements, and interagency agreements.” This means that agencies can comply with the order by identifying inconsequential rules that they want to eliminate without having to eradicate entire programs or rules with sweeping impact.
In addition, the order exempts from the 1-in-10-out requirement new “regulations issued with respect to a military, national security, homeland security, foreign affairs, or immigration-related function of the United States.” So even though agencies can easily identify 10 insignificant rules to repeal, the order will allow certain agencies to issue some of the most significant of this Administration—especially those relating to President Trump’s immigration agenda—without having to do even that.
The ability to game compliance with the 1-in-10-out requirement means that agencies will likely repeal many insignificant rules. But agencies will also seek to repeal significant rules, actions which will have meaningful deregulatory impact. That is where agencies will face the second challenge: lawsuits aimed at repeals.
When the Administration does target significant rules for rescission, it will have to keep in mind that the same legal justifications required to adopt a new rule are generally required to rescind an existing rule. When a rule is significant, the likelihood of a lawsuit challenging its rescission—and thus the importance of the agency’s justifications—will increase. Justifications for a rescission will need to be especially airtight, but agencies may struggle with providing legally adequate ones.
Before the current Trump Administration began, Elon Musk and Vivek Ramaswamy, then both leaders of the Department of Government Efficiency (DOGE), floated in an influential op-ed a few justifications for repealing rules on which the Administration may rely.
Musk and Ramaswamy argued, among other things, that the U.S. Supreme Court’s emergent major questions doctrine may justify repealing many significant rules. In West Virginia v. EPA, the Court ruled that agencies require “clear congressional authorization” if they are to take actions of major economic and political significance. Musk and Ramaswamy indicated their intent to use the Court’s demand for extraordinary statutory clarity to justify ending the existence of rules with significant impact. This approach may not be the slam-dunk that DOGE and the Trump Administration hope—one reason is that it is not always clear whether this nascent doctrine even applies to a particular regulatory action.
When the Administration cannot invoke the major questions doctrine it will have to meet the demanding standard that the Supreme Court has set for agency action to survive judicial review. According to that standard, agencies must have engaged in “reasoned decision-making,” which requires them to have considered alternatives to their decision and often to have undertaken a benefit-cost analysis. It may be difficult to demonstrate that a rule’s repeal, which an agency would not have considered but for the 1-in-10-out directive, was the result of this kind of reasoned decision-making.
Musk and Ramaswamy have also expressed their belief that the Court’s decision in Loper Bright Enterprises v. Raimondo will help them. In Loper Bright, the Court overruled Chevron deference, which required courts to defer to agencies’ reasonable interpretations of ambiguous statutes. In a post on X, Ramaswamy stated that in Loper Bright, the Court rendered the “over 18,000 federal cases citing the Chevron doctrine null and void.” This is inaccurate. The Court explicitly noted in Loper Bright that its ruling does not apply retroactively, only to future agency actions. Thus, it will actually be the coming rescissions, not the rules issued before the Court’s ruling, that will not receive Chevron deference.
If the first Trump Administration provides any indication, the legal challenges to this Administration’s rescinding of major rules may not fare well in court. Only 31 percent of major rules in the first Trump Administration survived legal challenge, compared to more than half of major rules in the Clinton, Bush, and Obama Administrations.
In his first term, President Trump overstated the extent to which his Administration deregulated; public perception mattered more to the President than true deregulatory impact. As Cary Coglianese wrote, the “Administration’s deregulatory rhetoric often far exceeded its actual record.” Given its deregulatory limitations, the provocative 1-in-10-out directive may be in keeping with this theme.
