Highlights from this edition of Checks and Balances include a new Office of Information and Regulatory Affairs (OIRA) memo that expedites agency deregulation, and an Ohio Supreme Court ruling against courts’ deference to Industrial Commission interpretation of safety requirements.

In Washington

OIRA issues new memo on deregulation

On Oct. 21, the White House Office of Information and Regulatory Affairs (OIRA) released a memo which established procedures to speed up the process of deregulation (agencies’ repeal of their existing rules). The Oct. 21 memo shortened the time that OIRA will spend reviewing deregulatory rules, from 90 days to 28 or, in some cases, 14 days. The Oct. 21 memo also reinforced previous directives to agencies in an April 9 OIRA memo on deregulation, because “agencies do not appear to be fully maximizing their energy in carrying out these directives.”

According to the Oct. 21 memo, OIRA will adopt a presumptive maximum 28-day period for its review of proposed deregulatory rules, and a presumptive maximum 14-day review period for rules repealing regulations that the memo calls facially unlawful. The memo also notes that OIRA may “take more time for technically complex or highly impactful reviews that deregulate entire sectors of the economy or for rulemakings that can be expected to generate significant litigation.” Executive Order 12866 previously established a maximum period of 90 days, with a single possible 30-day extension, for OIRA to review proposed rules.

Facially unlawful regulations and the good case exception

The Oct. 21 and April 9 memos carried out a Feb. 19 executive order, which directed agencies to identify and repeal “unconstitutional regulations and regulations that raise serious constitutional difficulties” as well as “regulations that are based on unlawful delegations of legislative power.” The April 9 memo identified ten recent Supreme Court decisions for agencies to consider when reviewing the lawfulness of regulations:

• Loper Bright Enterprises v. Raimondo (2024), which struck down judicial deference to agency interpretations of statute (known as Chevron deference)
• West Virginia v. EPA (2022), which used the major questions doctrine to limit the scope of powers available to the Environmental Protection Agency (EPA) under the Clean Air Act
• SEC v. Jarkesy (2024), which required a jury trial for the Securities and Exchange Commission to assess civil penalties
• Michigan v. EPA (2015), which found an EPA interpretation of the Clean Air Act to be unreasonable
• Sackett v. EPA (2023), which limited the scope of EPA authority under the Clean Water Act
• Ohio v. EPA (2024), which stayed an EPA plan establishing downwind emissions standards for industrial facilities
• Cedar Point Nursery v. Hassid (2021), which struck down a California law allowing union organizers to physically access worksites
• Students for Fair Admissions v. Harvard (2023), which ruled against university admissions programs that included applicants’ race as a factor
• Carson v. Makin (2022), which struck down a Maine law restricting private schools identified as sectarian from accessing a tuition assistance program
• Roman Catholic Diocese of Brooklyn v. Cuomo (2022), which enjoined a New York executive order limiting attendance of certain in-person religious services during the COVID pandemic

The  April 9 memo issued a directive for agencies to issue rules repealing facially unlawful regulations without a public comment period (reiterated in the Oct. 21 memo). Under the Administrative Procedure Act, agencies issuing a new regulation must generally notify the public and provide a period for public comment before it can go into effect. However, according to the Act, “when the agency for good cause finds… that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest,” the agency may waive this requirement. The Oct. 21 and April 9 memos argue that this good cause exception applies to rules that are facially unlawful (as the Oct. 21 memo puts it, “where a regulation is unlawful under the plain language of the controlling statute, the Constitution, or prevailing Supreme Court precedent”), allowing these rules to be repealed without a public comment period.

What is the context?

The Trump Administration outlined priorities for deregulation in a Jan. 31 executive order, which required that an agency wishing to enact a new regulation must repeal 10 existing regulations.

Roger Nober, Director of George Washington University’s Regulatory Studies Center, agreed with the Oct. 21 memo’s assertion that “agencies do not appear to be fully maximizing” deregulatory actions called for by the April 9 memo. On Oct. 28, he wrote that OIRA officials “probably weren't getting a lot of responses to [the April directive] because the agencies were nervous about basically using the ‘good cause exception’ to eliminate a rule that was adopted through notice and comment.”

Elizabeth Skerry, regulatory policy associate at Public Citizen, released a statement opposing the Oct. 21 memo. She said:“OMB’s memo… rests on the irrational proposition that all deregulation is good for America… regulatory protections make America stronger, healthier and cleaner and need to be enhanced, not rolled back..”

American Action Forum director of regulatory policy Dan Goldbeck said that the Oct. 21 memo “would represent a remarkably expeditious way for agencies to repeal a whole host of regulatory provisions assuming they make a cognizable case for unlawfulness under the April 9 memo’s parameters,” but cautioned that “basically any such recission made under it will come under immediate legal challenge that will require extensive adjudication.”

Want to learn more?

• Office of Information and Regulatory Affairs
• Administrative Procedure Act
• Executive Order: Unleashing Prosperity Through Deregulation (Donald Trump, 2025)
• Executive Order: Ensuring Lawful Governance and Implementing the President's "Department of Government Efficiency" Deregulatory Initiative (Donald Trump, 2025)

In the states

Ohio Supreme Court says courts must not defer to Industrial Commission's interpretation of state safety requirements

What's the story?

The Ohio Supreme Court ruled on Oct. 16, 2025, that state courts should not defer to the Ohio Industrial Commission's interpretations of Ohio's safety laws or administrative rules when reviewing whether an employer violated them. The ruling in State ex rel. Berry v. Indus. Commission came after a worker appealed a commission ruling that he was not entitled to a Violation of Specific Safety Requirement (VSSR) award.

What's the background?

Administrative law judges in the Ohio Industrial Commission hear appeals of Ohio Bureau of Workers’ Compensation (BWC) decisions. The Commission has exclusive and final jurisdiction to determine whether an injury, disease, or death resulted from an employer's failure to comply with any specific safety requirement. Ohio employees may be entitled to VSSR awards when a workplace injury results from an employer’s violation of a safety requirement.

Curtis Berry applied for a VSSR award under Article II, Section 35 of the Ohio Constitution in 2019 following a 2017 work injury, saying that his employer, Underground Utilities Inc., violated three safety regulations. 

The Commission denied the VSSR award application in 2021, ruling that either Underground Utilities Inc. did not violate the regulations or that the allegedly violated regulations did not apply. Berry filed a complaint against the commission's decision in the Ohio Tenth District Court of Appeals, arguing that the Commission misinterpreted the regulations and that Underground Utilities Inc. had violated them.

The Ohio Tenth District Court of Appeals found that courts should not defer to the Commission's interpretation of safety statutes or regulations. The court vacated the Commission's decision, and ordered the Commission to issue Berry an award. Both Underground Utilities Inc. and the Commission appealed the decision to the Ohio Supreme Court.

On Oct. 16, the state supreme court upheld the Tenth District's ruling that while the commission’s factual determinations are final, its legal interpretations of specific safety requirements are not, and that courts must rely on their own interpretations of state safety laws and regulations. However, it ruled that the Tenth District overstepped its legal authority by requiring the Commission to issue Berry a VSSR award, saying it impeded the Commission's statutory jurisdiction to decide whether a violation occurred and caused an injury. The court ordered the Commission to rehear the case in light of the Tenth District's interpretation of the regulations the employer allegedly violated.

The decision was unanimous; the court has seven Republican justices and one Democratic justice.

"Employees may in the future argue for broader interpretations of specific safety requirements at the Industrial Commission and in court," according to a JDSupra analysis of the case.

Zooming out

The Ohio Supreme Court has already limited judicial deference to agencies through two recent decisions. In 2022, it ruled that courts are not required to defer to agencies' interpretations of ambiguous statutes, though they may consider them as persuasive. The practice of deferring to agencies’ interpretations of statutes is known as Chevron deference, which the U.S. Supreme Court overturned at the federal level through its 2024 ruling in Loper Bright Enterprises v. Raimondo. In 2023, the Ohio Supreme Court ruled that state courts must not defer to agency interpretations of their own regulations, a practice called Auer deference.

The decision in State ex rel. Berry v. Indus. Commission applies to the Industrial Commission's interpretations of state safety requirements, which come from both state law and state regulations. The State ex rel. Berry ruling expanded the 2022 decision not to require Chevron deference by saying courts must not defer to such interpretations by the Industrial Commission. The Oct. 16 ruling also differed from the 2023 limitation of Auer deference. Since the commission does not promulgate safety regulations, deference to interpretations of these regulations would go beyond Auer deference and include rules that other agencies created.

Want to learn more?

• Chevron deference 
• Auer deference 
• Judicial deference
• State responses to judicial deference 

Featured commentary

What role did presidential impoundments play in the federal shutdown? George Washington University Law School dean Alan B. Morrison argues that Trump administration actions to withhold appropriated funds earlier this year complicated the federal shutdown. Click here to read the full article.

Regulatory highlight

Congressional Review Act

The Congressional Review Act (CRA) allows Congress to repeal rules with joint resolutions of disapproval. The 119th Congress had 60 working legislative days from the 15th day of the session (a window that ended in early May) to introduce resolutions to disapprove of regulations the Biden administration issued after Aug. 16, 2024.

• Members of the 119th Congress have introduced 111 CRA resolutions in the 119th Congress to repeal regulations. Most of these regulations are from the Biden administration, but some were issued under the second Trump administration, with Democrats challenging them. Twenty-four (24) resolutions have passed one congressional chamber, 19 have passed both chambers, and as of Nov. 17, Pres. Trump had signed 16 into law. The most recently enacted CRA resolution nullified a regulation removing expedited federal review of large bank mergers.
• In his two terms, Trump (R) has signed 32 of the 36 total CRA resolutions ever adopted. President George W. Bush (R) signed one in 2001, and President Joe Biden (D) signed three in 2021.

Notable regulation

• The Office of Information and Regulatory Affairs (OIRA) completed its review of a Federal Energy Regulatory Commission rule sunsetting regulations implementing the Federal Power Act of 1935 (FPA), the Natural Gas Act of 1938 (NGA), and the Powerplant and Industrial Fuel Use Act of 1978 (PIFUA). The Commission issued the rule pursuant to Executive Order 14270: Zero-Based Regulatory Budgeting to Unleash American Energy.

• Want to learn more? 
  • Congressional Review Act
  • Executive Order 14270: Zero-Based Regulatory Budgeting to Unleash American Energy
  • Implementation of the Executive Order Entitled “Zero-Based Budgeting To Unleash American Energy”

Pick of the news

Federal

Trump dismisses inspector general of the Export-Import Bank. President Trump dismissed Parisa Salehi, Inspector General of the Export-Import Bank, on Oct. 15. Trump dismissed 17 Inspectors General at the beginning of his second term. New York Times

Merit Systems Protection Board quorum restored. The Senate confirmed James Woodruff to the Merit Systems Protection Board on Oct. 7, restoring a quorum to the Board. The Board lost a quorum earlier in 2025 when President Trump terminated Board member Cathy Harris. Bloomberg Law

Fifth Circuit ruling limits National Labor Relations Board power. The Fifth Circuit Court of Appeals has ruled that a National Labor Relations Board award of compensatory damages is not permissible under the National Labor Relations Act. This ruling contradicts an earlier Ninth Circuit ruling, making a Supreme Court review of the case more likely. National Law Review

Some agency staff reductions continued during shutdown. Most reduction-in-force (RIF) orders issued during the government shutdown were on hold following a court order, but according to various agencies some RIF plans were not covered by the order and were proceeding. Federal News Network

Executive order requires agency hiring plans to reflect administration priorities. President Trump issued an executive order which extended the federal hiring freeze and required agencies to submit annual staffing plans to the Office of Personnel Management and the Office of Management and Budget. Under the order, the plans must reflect administration priorities. Government Executive

State

Wisconsin Legislature considers bills restricting agency rulemaking. The Wisconsin Legislature is considering a package of Republican-sponsored bills which would limit agencies’ rulemaking powers. Wisconsin Public Radio

Legislative Tracking Update

Since our last newsletter edition, Ballotpedia tracked significant legislative action (enactments, vetoes, and passage through both chambers) in five states on seven bills related to the administrative state. One state (NY) enacted a bill, one state (IL) passed a bill in both chambers, Wisconsin Gov. Tony Evers (D) vetoed one bill, and North Carolina Gov. Josh Stein (D) and New Jersey Gov. Phil Murphy (D) each vetoed two bills.

Ballotpedia has tracked a total of 2,288 related to the administrative state in 2025 as of Nov. 17.