How Does a Rule Get Un-Made? The Effect of Executive Orders on Rules and Regulations

Executive orders are a common tool used by every presidential administration. The effect of an executive order is limited and must be in accordance with the law. Its directives only extend to the executive branch, and they are a temporary measure that is subject to modification or reversal by a later President. Generally, the process for an executive order is simple. The President will issue an executive order that is implemented in one of several ways: by the White House, by an agency, or through interagency coordination. In rare instances, Congress will authorize the President to make decisions that have legal effect; however, executive orders are not typically a form of lawmaking. That responsibility lies with the legislative branch.

For an executive order to bind a government agency and withstand judicial review, the executive order must be consistent with and operate within the limits of applicable law. Executive orders cannot unilaterally revoke rules of an agency that are already in effect. On February 19, 2025, President Trump issued an executive order directing agencies’ rulemaking and enforcement activities titled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative” (the “DOGE EO”). The DOGE EO is expected to bring about agency action that results in rescinding or modifying regulations that are already in effect. This directly impacts health care entities and providers that are subjected to numerous regulations.

The DOGE EO establishes requirements for rulemaking and enforcement, which includes requiring agencies to begin a process to identify and rescind regulations that are inconsistent with the current administration’s policies and raise legal questions. For any such regulations, the DOGE EO also requires agencies to constrain their enforcement authorities. Generally, rules and regulations can only be amended through notice and comment rulemaking, which is governed by the Administrative Procedures Act (“APA”). The process requires advance notice and a period for public comment. The DOGE EO seeks to bypass this process and directly amend rules and regulations. Interestingly, although an agency has to comply with the APA, an executive order is considered a “presidential action” and not an “agency process.” Therefore, although the President is the head of the executive branch, he is not any “agency” and, as a result, cannot be subjected to the provisions of the APA. If agency action can only become final through presidential action, it is likely that courts will reject procedural challenges to interim agency actions. This does not mean that an executive order cannot be substantively challenged on constitutional grounds.

Practically speaking, for individuals and entities in the heavily-regulated health care industry, it will be important to pay close attention to agency action and any resulting litigation. Agencies are likely to rescind or modify rules that they believe exceed their authority. If they do so without issuing a Notice of Proposed Rulemaking or providing a period for public comment, a final rule rescinding or modifying an existing regulation will be open to challenge. This may create uncertainty regarding what rule is currently in effect and blur the requirements for compliance, especially if compliance is costly or requires implementation of new systems.