Hiltzik: Anti-Trump lawsuits are already piling up

Here’s a phrase — three words, only eight syllables in all — that’s going to gain paramount importance in the conduct of government policy by Donald Trump over the next few years.

The phrase is “arbitrary and capricious.” It’s a guidepost for federal judges hearing challenges to agency rulemakings — whether by promulgating new rules or trying to overturn old ones. The terms are embedded in the Administrative Procedure Act of 1946, which spells out the steps government agencies must take to immunize their rules from legal challenges.

Trump has tried to evade those steps by purporting to rescind rules and regulations via executive orders, including 26 he issued on Inauguration Day, or via administrative ukases. That won’t do, says Peter M. Shane, an expert in constitutional and administrative law at NYU law school.

“A lot of the executive orders talk about Trump’s wonderful mandate and the wonderful things he alone can accomplish,” Shane told me. “But none of that bears on their legality.”

For example, take the memo issued Jan. 27 by Matthew J. Vaeth, the acting director of the Office of Management and Budget, abruptly suspending almost all federal financial assistance payments until they could be aligned with “Presidential [that is, Trump’s] priorities.”

The premise that all federal dollars should be spent consistently with the priorities of the president “pretty much turns the ‘faithful execution of the laws’ idea [the president’s responsibility according to Article 2 of the Constitution] on its head,” Shane says. It’s Congress that sets forth spending priorities, not the president.

The OMB order was blocked by a federal judge and the memo withdrawn. Because there are indications that the Trump administration feels it still has the power to suspend payments, a federal judge still has a restraining order against the administration in place.

That conflict points to the arena where the most effective resistance to Trump policies may play out: federal courts. Plaintiffs challenging Trump actions are sure to be plentiful. They include states, which the Supreme Court endowed with the standing to sue the government over administrative rules in a 2023 decision finding for the state of Missouri in its challenge of President Biden’s student debt forgiveness program.

Normally, plaintiffs in federal court acquire “standing” to sue by showing that they’ve been injured — or are likely to be — by a government action. Environmental and consumer groups won’t have much trouble finding plaintiffs who can show they were injured by a new Trump rule or his rescinding of an existing rule.

A key instrument for Trump opponents will be the Administrative Procedure Act, which sets forth the process through which federal agencies can draft or rescind regulations, and the standards applying to judicial review. In general, the act mandates that agencies publish a proposed rule at least 30 days before it is to take effect. They have to provide adequate time for public comments, which must also be published — traditionally, this period is also at least 30 days, though for major rules it can extend for months.

Once that process is complete and a final rule published, courts can review it. Courts can overturn a rule if they find it to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; unconstitutional; “unsupported by substantial evidence”; or if the proper procedure wasn’t followed. Substantive public comments have to be addressed by the agency.

This all means that the administration is expected to justify a new rule or the cancellation of an old rule with evidence and reasoned argument — the assertion that an existing rule doesn’t comport with Trump’s “priorities” will probably not be enough. In a 2024 decision, for instance, a federal judge in San Francisco overturned a Department of Agriculture rule lessening the oversight of genetically engineered crops because he found it “untethered to a clear and sound analysis.”

These standards were the shoals on which much of Trump’s first-term effort at regulatory vandalism foundered. Indeed, Trump’s deregulatory project was the least successful of any recent president: It was “a remarkably regular occurrence” for Trump’s deregulatory initiatives to be struck down in court, observed Philip A. Wallach and Kelly Kennedy of the Brookings Institution. Federal agencies won only 31% of rule challenges in federal court during Trump’s first term, according to the Institute for Policy Integrity of NYU’s law school.

Bill Clinton notched a nearly 66% win rate in his second term, and the George W. Bush and Obama administrations won more than 50%. Through 2023, the Biden administration won nearly 41% of its cases despite the rise of “forum shopping” during his term, in which conservatives filed their challenges to Biden policies in rural federal districts with conservative judges, many of them Trump appointees.

More than three-quarters of anti-Biden challenges were filed in courts other than in Washington, D.C., the traditional venue for administrative challenges. More than 25% of those challenges were filed in four federal courts in Texas where plaintiffs were almost certain to draw a Republican-appointed judge.

To look at the record through a different lens, the first Trump administration lost 192 lawsuits challenging its rulemaking (defined as either being handed an adverse court decision or choosing to withdraw a challenged rule after a lawsuit was filed). It won only 54. In more than 60 of those losses, judges cited either the “arbitrary and capricious” or “notice and comment” standard in rejecting the Trump position.

As Shane and his co-author Robert E. Litan pointed out in an article for Brookings, the passage of time may be an effective weapon for challengers. The procedural requirements of the APA and other federal laws can stretch the rulemaking process for years. A proposed rule must be backed up by a detailed, technical rationale.

To rescind a previously approved regulation, an agency must compile a rationale at least as detailed as the one submitted for the original version. As of 1981, federal agencies are required to produce a cost-benefit analysis showing that a measure’s benefits will outweigh its costs.

An existing rule “will have gone through a pretty rigorous analysis, and there’s going to be a pretty extensive record saying, ‘This rule is a good thing,’” Shane says. Successor agencies “will have to have their own analysis, their own studies” to address the existing record supporting a rule. “That’s going to take time.”

Let’s not overlook how long it takes for a federal lawsuit to make its way through the judicial alimentary canal. Shane and Litan note that Trump’s effort to repeal an Obama-era rule ordering the reduction of greenhouse gas emissions from coal-fired power plants began in 2017. The repeal was promptly challenged in court by states and environmental groups, and finally reached the Supreme Court, which allowed the repeal in 2022 — a journey of more than five years.

Trump’s deregulatory team, including the so-called Department of Government Efficiency led by Elon Musk, is counting on a regulation-averse Supreme Court majority to endorse their efforts. In a Wall Street Journal op-ed published in November, Musk and his then-partner in DOGE, Vivek Ramaswamy, cited two Supreme Court decisions that pared back agency rulemaking authority. (Ramaswamy later stepped down from DOGE.)

They may have overstated the reach of those cases. In the first, the 2022 ruling that overturned the coal emissions rule, the court applied the nebulous “major questions doctrine,” which it interpreted as requiring Congress to specifically authorize any rulemaking with “vast economic and political significance” — which it didn’t define. But it’s a safe bet that most regulations that may be targeted by Trump or Musk won’t rise to the level of “major questions,” so they’ll be subject to the customary administrative standards.

In the second ruling, issued in July, the court abandoned the 40-year-old “Chevron deference” precedent, under which federal courts tended to defer to agency interpretations of statutes that were found to be legally ambiguous, if the interpretations were “reasonable.” Instead, the court ruled that in those cases, judges have the power to reach their own interpretations without deferring to agency thinking.

Yet the court ruling was not unlimited. It states that regulations that courts approved through Chevron deference are grandfathered — so overturning them will still require the full APA treatment. The ruling may even work against Trump’s efforts, since his agencies’ interpretations of the law will no longer have the deference that the Chevron precedent afforded them.

The first signs of a torrent of anti-Trump lawsuits have already emerged. The litigation tracker at Just Security already lists 25 federal lawsuits filed since Jan. 20. The cases address Trump’s payment suspension, his effort to rescind the Constitution’s guarantee of birthright citizenship, his immigration enforcement activities, his attacks on transgender rights and Musk’s takeover of government functions. Among the plaintiffs are states, labor unions, immigrant advocates and environmental groups.

More cases are being filed almost every day. As recently as Wednesday, National Labor Relations Board member Gwynne Wilcox, a Democrat, sued to overturn her abrupt dismissal by Trump on Jan. 27. NLRB members serve a fixed term — Wilcox’s expires on Aug. 27, 2028 — and they can be removed only on a showing of “neglect of duty or malfeasance in office,” and subject to a hearing. Trump cited no such causes.

Legal commentators have pointed out the sloppy drafting of some of Trump’s first-day executive orders — “shoddy, shoddy lawyering,” in the words of Slate’s Dahlia Lithwick, who noted that Trump’s first-term losses were often due to “crap lawyering by crap lawyers cutting corners and doing a bad job.” That may well increase their vulnerability to courthouse challenges. She’s not the only one who has noticed.

“Where were the lawyers when this decision was being made?” federal Judge John Coughenour of Seattle asked in issuing a temporary restraining order on Jan. 23 against Trump’s attempt to nullify by executive order the birthright citizenship provisions of the Constitution. He called the order “blatantly unconstitutional.” Since then, a second judge has blocked the order.

It’s possible that the federal judiciary will throw in its lot with Trump, as the Supreme Court majority has done in several important cases. But it’s also possible that judges at all levels of the federal courts, including the Supreme Court, will find that many of his initiatives go too far beyond what the law allows. We won’t know until the lawsuits meet their first judges, but the process has started.