‘Tired of Winning’: Judicial Review of Regulatory Policy in the Trump Era

78 Admin. L. Rev. 353 (2021)

67 Pages Posted: 3 May 2023

See all articles by Bethany Davis Noll

Bethany Davis Noll

State Energy & Environmental Impact Center at NYU School of Law

Date Written: April 22, 2021

Abstract

As Congress has declined to act on major presidential priorities, presidents have increasingly turned to administrative agencies to make substantive policy. Agency regulations are subject to judicial review, but it is conventional wisdom that agencies are unlikely to lose in court and thus that presidents have considerable room to make policy through their agencies. But does that observation hold in the Trump Administration? This Article presents an original empirical analysis of the Trump Administration’s success rate in legal challenges to the Administration’s agency actions. The findings are striking. While prior administrations prevailed in approximately 70% of legal challenges to agency actions, the Trump Administration’s success rate was 23%.

To better understand that top-line finding, the Article probes the factors that have contributed to the Trump Administration’s difficulty defending agency regulations from legal challenges. The data demonstrate that Trump-era agencies consistently violated statutory limits on agency policymaking and failed to comply with procedural requirements governing agency regulations. Several arguments raised to explain the low win rate, including appeal effects and judicial ideology, are lacking. These findings offer a powerful rejoinder to the claim that judicial review is a feeble check on presidents’ use of the administrative agencies to make regulatory policy. The conclusions also offer important guidance to future administrations on the limits of what can be achieved through administrative action.

Keywords: Administrative, Judicial Review, Trump, Empirical, Reasoned Decisionmaking, Statutes

JEL Classification: K32, K40

Suggested Citation

Davis Noll, Bethany, ‘Tired of Winning’: Judicial Review of Regulatory Policy in the Trump Era (April 22, 2021). 78 Admin. L. Rev. 353 (2021), Available at SSRN: https://ssrn.com/abstract=4426370

Bethany Davis Noll (Contact Author)

State Energy & Environmental Impact Center at NYU School of Law ( email )

Wilf Hall, 139 MacDougal St.
New York, NY 10012
United States

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