Biden administration can learn from Trump-era court losses
More than eight months after Biden’s presidency began, the administration is increasingly facing challenges in federal and administrative courts. These courts have so far ruled against the president’s efforts to change course in areas ranging from oil drilling (now appeal) immigration (also on appeal).
The Trump administration has also faced numerous legal challenges and losses. In our to study of nearly 300 cases published with the Administrative law exam, we found that the Trump administration won only 23% of these cases. The study shows that losses have increased even in front of partisan judges and that Trump administration agencies have lost for more than shoddy work. Court after court, the agencies had violated their statutory mandates.
By going through its records now, the Biden administration can learn from these mistakes.
Prior to the Trump administration, studies consistently found that presidential administrations won in about 70% of court challenges against rulemaking and agency administrative policies. Two studies, from 2011 and 2010, compiled previous studies and both found an average win rate close to 70%. In the 2011 study, Richard Pierce looked at studies published between 1997 and 2010 and found win rates between 64% and 81.3%. In the 2010 studyDavid Zaring looked at papers published between 1986 and 2009 and found an overall win rate of 69%.
A 2017 to study, which included agency actions during President Obama’s first term, reviewed 1,558 decisions by law-interpreting agencies and found that, overall, 71% were upheld by the United States. circuit courts.
Our study, which found a 23% success rate, examined all of the underlying challenges to the actions of administrative agencies during the Trump administration, in the country’s trial and appeals courts. We also followed cases where the administration was challenged in court but, rather than defending its actions, chose to withdraw its policy (counted as losses). If these cases are removed, the win rate only increases by 26%.
The study also included cases where a court upheld part of a rule while invalidating another part of the rule. These were a small number of cases and when removed from the dataset the win rate was still only 23%.
Trump’s environmental win rates
The Trump administration has repeatedly made headlines for its tribunal losses on hot issues such as immigration and weakening environmental safeguards. Our study found that, of the 139 cases in our dataset that fell into the categories of environment, energy, and natural resources – typically involving actions from the EPA, Department of Energy or of the Interior Ministry – the administration prevailed in only 34 cases. , resulting in a 24% win rate, just slightly above the Trump administration’s overall win rate, as shown in the graph above.
The losses have occurred in cases involving policies ranging from cancellation of energetic efficiency, penalties, and methane emission rules for environmental review of many different projects. The victories also included a few environmental review and statutory authority cases as well as at least some victories in cases where the industry disputed the EPA.
What went wrong to lead to a 23% win rate for the Trump administration, compared to the average 70% win rate for all administrations?
Judicial affiliation is not an explanation
A common explanation has been that the administration has lost so frequently to Democrat-appointed judges.
But the Trump administration’s victory rate before Republican-appointed judges was 45%. For environmental cases, the victory rate in front of Republican-appointed judges was not much higher: 55%.
This compares to pass studies find agency win rates of up to 80% in front of partisan judges. Of course, the overall 16% win rate before Democrat-appointed judges was even lower, but the low win rate before partisan judges is well outside the norm.
Statutory losses covered a wide range of environmental and other issues. A federal district court tenuous that the Trump administration’s efforts to allow gillnet fishing in whale-feeding areas were illegal. Another federal district court tenuous that a policy imposing barriers to the nationalization of the US military violated immigration law.
Yet another federal district court tenuous that the Education Ministry violated the Coronavirus Aid, Relief and Economic Security Act by favoring private schools over public schools in disbursing funds. And a court of appeal released the administration’s overturning of the Obama-era regulations on carbon emissions from existing power plants, arguing that the EPA had fundamentally misinterpreted the Clean Air Act.
Unreasonable interpretations of the law
The low win rate was also not due solely to shortcuts, unprofessionalism or rushed regulation, as commonly thought. We calculated the numbers when there was a written decision (i.e., excluding cases where the administration abandoned and withdrawn its policy after a challenge was initiated). And while courts have repeatedly ruled that agencies failed to provide a reasoned explanation for the agency’s action (78 losses) or failed to meet notification and comment requirements (26 losses) , a much larger number of cases (117) involved courts finding that an agency had relied on an unreasonable interpretation of applicable law or lacked legal authority.
Across all of these issues, the win rate in these cases did not change dramatically, ranging from 24% for review and comment violations to 30% for legal permission issues.
These findings offer the Biden administration a critical lesson. Executive agencies cannot blindly rely on their traditionally high success rate in litigation. If agencies fail to engage in reasoned decision-making and stay within statutory limits, the courts will act as a bulwark.
The Biden administration has suffered some losses, but it has also met at least one challenge so far. By comparison, by this time of the Trump era, a major policy lowering the limits on methane emissions from oil and gas facilities had been overturned and several agencies had withdrawn their policies after the filing of lawsuits. (The current timeline tracker which helped form the basis of the new study shows these cases).
For now, it is too early to make general predictions about the potential rate of gain and loss of the Biden administration. But Biden-era agencies would do well to remember the lessons of the Trump era.
This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.
Bethany davis noll is an assistant professor and executive director of the State Energy & Environmental Impact Center at the NYU School of Law.
Julia paranyuk, a recent graduate of New York University Law School, contributed to this article.