ANALYSIS: Discovery Orders to Infuse Light Into APA Challenges

Last year saw the demise of judicial deference to agencies’ statutory interpretations. This year, limits on nationwide injunctions and emergency Supreme Court rulings have hampered judges’ ability to enjoin executive action. In 2026, look for the tug of war between the executive branch and the lower federal courts to extend into a typically more mundane arena: discovery.

In suits that are filed under the Administrative Procedure Act, discovery is the exception, and plaintiffs face a high bar to obtain it. But in 2026, district courts may increasingly allow APA plaintiffs to take discovery, including discovery of agency deliberative materials covered ...