DOGE Is Dead, But Deregulation Is Just Getting Started

Eight months ahead of schedule, the Department of Government Efficiency (DOGE) has reportedly disbanded, but its mission is far from over. In October, the Acting Administrator of the Office of Information and Regulatory Affairs (OIRA), Jeffrey Bossert Clark, Sr., issued a memo urging agencies to “redouble their efforts” to “aggressively and quickly withdraw regulations that are facially unlawful in light of recent Supreme Court precedent.” The memo sets out guidance for expediting these repeals and establishes dramatically shorter timelines for OIRA review.

Consistent with DOGE’s approach, the memo prioritizes speed over durability. That trade-off deserves scrutiny. Even if deregulation is the goal, shortcuts that undermine important regulatory principles, such as public engagement and analysis of impacts, may lead to lower quality regulations in the short and long run.

The first section of Clark’s memo targets the interagency review process—run by OIRA, the office I led during the George W. Bush Administration and that Clark now leads. OIRA review serves three critical functions:

Analytical rigor: OIRA’s career staff assess regulatory impact analyses to help ensure proposed and final regulations are based on the best available evidence and are likely to yield net social benefits.Coordination: By coordinating with other agencies, the office minimizes conflict and duplication across government activities.Accountability: As part of the Executive Office of the President, OIRA ensures that regulations align with presidential priorities.

Every President since Ronald Reagan has relied on OIRA to improve regulatory quality. Under Executive Order 12,866, in place since 1993, the presumptive review timeline is 90 days, with most reviews averaging 60 days. The new memo slashes that dramatically, providing for a maximum review period of 28 days for deregulatory actions supported by factual records and 14 days for actions repealing rules deemed “facially unlawful.” Analytical rigor, interagency coordination, and accountability will necessarily suffer.

Recent data suggest that reviews since Clark sent his memo are slightly shorter than previously, but it is too soon to tell whether this signals a lasting trend.

Like earlier DOGE guidance and an April memo from President Donald J. Trump, Clark’s October directive assumes a large inventory of “facially unlawful” regulations. For these, the memo encourages agencies to bypass notice-and-comment procedures under the “good cause” exception in the Administrative Procedure Act of 1946. Clark argues that the conditions for good cause are met because public input cannot cure a rule’s illegality and would waste taxpayer resources.

This is a novel use of the 1946 statute’s good cause exemption, which permits agencies to bypass notice-and-comment requirements if they find it would be impracticable, unnecessary, or contrary to the public interest. In practice, it means agencies that follow Clark’s memo need only provide a brief statement explaining why a rule is unlawful and why good cause applies. According to the memo, such rules would not require analysis of likely impacts or any rebuttal of the arguments used to support the rule in the first place. Although legally defensible in narrow circumstances, excessive reliance on this shortcut would erode transparency and public trust. Rules issued using this exemption are also less likely to survive the inevitable court challenge by parties claiming a “reliance interest,” namely, that stakeholders had structured their behavior and investments around the prior status quo.

One wonders what would happen if a future administration were to find good cause to avoid analysis and public engagement when issuing sweeping new rules on the grounds that such steps would be “contrary to the public interest.” The memo indirectly responds to this by arguing that executive orders and other requirements designed for “positive regulation” are less relevant when removing restrictions. Although that logic has some appeal, it overlooks a key precedent from the U.S. Supreme Court: Motor Vehicle Manufacturers Association of the United States v. State Farm, which held that rescinding a rule is subject to the same “arbitrary and capricious” standard as issuing one. That means that agencies must follow the same steps to deregulate as they followed to regulate, which generally requires seeking public comment and providing a reasoned analysis for any change in policy direction.

The Trump Administration’s response may be that exempting rules from notice-and-comment procedure is well within the President’s power to “take Care that the Laws be faithfully executed.” Chief Justice John Roberts famously commented during an oral argument that judges on the U.S. Court of Appeals for the D.C. Circuit would vacate five rules before breakfast. If federal judges can promptly set aside a rule that they regard as plainly unlawful, the President can argue that he has this right, and even the constitutional duty, to act with similar dispatch. Of course, it is ultimately the role of the courts to decide what is lawful, especially in light of the very Supreme Court decisions the Administration is relying on, such as Loper Bright Enterprises v. Raimondo.

The Clark memo does acknowledge that not all deregulatory actions will qualify as unlawful, and that transparency and “development of a strong regulatory record” can help “lead to long-lasting and successful deregulation of the economy, as well as an increase of economic freedom and liberty for American businesses and the American people.” It thus encourages agencies to engage in robust regulatory impact analysis to “buttress records in facially illegal deregulatory situations” and suggests considering unique benefits of deregulation, including increasing individuals’ and firms’ ability to “pursue their own self-defined interests, unfettered by regulation” and the spill-over benefits that deregulation of one sector provides to others.

The memo also observes correctly that prospective impact analyses conducted for past regulations necessarily contained uncertainties:

Whenever agencies can see that the predictions of costs and benefits it made when it once stood at the door to new regulation have not been borne out by experience, and that this experience shows that costs exceed benefits or that costs plus qualitative decision-making factors exceed benefits, it can make a powerful case for deregulation.

This is undoubtedly true. Indeed, for this very reason, I would love to see more effort focused on retrospective evaluations of existing regulations.

In many ways, Clark’s memo is well-crafted and well-reasoned, clearly reflecting the Trump Administration’s preference for speed over deliberation. As a former OIRA administrator, however, it pains me to see a weakening of that office’s important role. I also question whether this hasty approach will succeed in the long run. Deregulation done right—grounded in analysis and a transparent process and based on retrospective evaluations—can enhance freedom and economic growth. Done hastily, it risks legal vulnerability, undermines the credibility of the regulatory system, and makes it easier for future administrations to rapidly impose regulations to restrict freedom and choice.

If we have learned anything from DOGE’s short-lived experiment, it is that process matters. To improve regulatory outcomes, the Trump Administration should commit to rigorous retrospective review of existing regulations. That is where the real gains lie—not just in repealing rules quickly, but in learning from past mistakes to craft smarter, more flexible policies for the future.