The Regulatory Rollback: Executive Power and the Question of Administrative Continuity

The Proposition

The administration has announced the review or rescission of over 300 federal regulations in its first two months. The conservative should welcome this in principle, the regulatory state is overgrown, and question it in method, because executive rollback of regulations that were promulgated through notice-and-comment rulemaking raises the same procedural concerns that conservatives have historically leveled against regulatory overreach.

WHAT HAPPENED

• The administration ordered a review of all regulations issued in the final 60 days of the Biden administration ("midnight rules")
• Over 300 regulations were targeted for rescission, delay, or revision
• The regulatory freeze affected rules covering environmental standards, workplace safety, financial regulation, and healthcare
• Multiple rules were rescinded without completing the notice-and-comment process required by the Administrative Procedure Act
• Business groups praised the rollback; regulatory agencies warned of enforcement gaps

THE CONSERVATIVE DIAGNOSIS

The conservative critique of the regulatory state has always rested on two pillars: substance and process. The substantive critique holds that many regulations impose costs that exceed their benefits. The procedural critique holds that regulations promulgated by unelected bureaucrats lack democratic legitimacy.

The regulatory rollback satisfies the substantive critique while violating the procedural one. Regulations promulgated through notice-and-comment rulemaking cannot be rescinded by executive fiat without completing the same process in reverse. The Administrative Procedure Act requires that rescission, like promulgation, follow a public process with opportunity for comment. An executive order that rescinds a rule without this process is not deregulation. It is regulation by executive command, the very thing conservatives claim to oppose.

THE LIBERAL ERROR

The progressive defense of the regulatory state often conflates the existence of a regulation with the existence of a public good. Not every rule produces net benefits. The conservative is correct that regulatory accumulation imposes compliance costs that fall disproportionately on small businesses and that some regulations survive past their usefulness. The question is not whether regulatory reform is needed but whether the reform respects the procedures that give regulations their legitimacy.

THE CONSTITUTIONAL QUESTION

The APA was enacted in 1946 precisely to prevent arbitrary executive control over regulatory policy. It established that regulations must be created through a transparent process and that they cannot be undone without an equally transparent process. When the executive rescinds rules without notice and comment, it claims a power the APA was designed to deny.

The irony is acute: the administration that criticizes the regulatory state for bypassing democratic accountability is itself bypassing democratic accountability to dismantle it. The method undermines the message.

WHAT PRUDENCE REQUIRES

Genuine deregulation requires the patience to rescind rules through the APA process: publish a notice of proposed rescission, accept public comment, respond to significant comments, and issue a final rule. This takes 12–18 months per regulation. It is constitutionally sound and politically tedious, which is why every administration prefers the shortcut of executive orders.

SOURCES

• Administrative Procedure Act, 5 U.S.C. § 553
• Federal Register notices of proposed rescission, January–March 2025
• Congressional Research Service, "Regulatory Rollback Procedures" (2025)

POLLERBULL SIGNAL

• What moves odds: Regulatory rollback produces no immediate electoral effect. Its effects are visible only when enforcement gaps produce concrete harms (workplace injuries, financial fraud, environmental contamination), which typically lag by 12–24 months.
• What would falsify this: If the courts uphold executive rescission without notice-and-comment, the APA's procedural requirements will have been functionally overridden, and future administrations of either party will govern accordingly.