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The Biden Administration Can Learn From Trump-Era Court Losses

Sept. 29, 2021, 8:01 AM

More than eight months into the Biden presidency, the administration is increasingly facing challenges in federal and administrative courts. These courts so far have ruled against the president’s efforts to change course in areas ranging from oil drilling (now on appeal) to immigration (also on appeal).

The Trump administration, too, faced numerous court challenges and losses. In our study of almost 300 cases published with the Administrative Law Review, we found that the Trump administration won only 23% of these cases. The study shows that losses mounted even in front of partisan-aligned judges and that Trump administration agencies lost for more than just sloppy work. Court after court found the agencies had violated their statutory mandates.

In navigating its cases now, the Biden administration can learn from those mistakes.

Prior to the Trump administration, studies consistently found that presidential administrations prevailed in approximately 70% of judicial challenges to agency rule makings and administrative policies. Two studies, from 2011 and 2010, compiled prior studies and both found an average win rate near 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 study, David Zaring looked at papers published between 1986 and 2009 and found an overall win rate of 69%.

A 2017 study, which included agency actions during the first term of President Obama, examined 1,558 agency decisions interpreting statutes and found that, overall, 71% were upheld by U.S. circuit courts.

Our study finding a 23% win-rate surveyed all on-the-merits challenges to administrative agency actions during the Trump administration, across trial and appeals courts around the country. We also kept track of cases where the administration was challenged in court, but then, rather than defend its actions, opted to withdraw its policy (counted as losses). If those case are removed, then the win rate goes up to only 26%.

The study also included cases where a court upheld part of a rule while striking down a different part of the rule. This was a small number of cases and when they are removed from the dataset, the win rate was still only 23%.

Trump’s Environmental Win Rates

The Trump administration repeatedly made headlines for its court losses on hot-button issues such as immigration and weakening environmental safeguards. Our study found that, of the 139 cases in our data set that fell into the environment, energy, and natural resources categories—generally involving actions by the EPA, Department of Energy, or the Department of Interior—the administration prevailed in only 34 instances, resulting in a 24% win rate, just slightly higher than the Trump administration’s overall win rate, as noted in the above graphic.

The losses occurred in cases challenging policies ranging from rollbacks of energy efficiency, penalties, and methane emission rules to environmental review of many different projects. The wins also included some environmental review and statutory authority cases as well as at least some wins in cases where industry challenged the EPA.

What went wrong to lead to a 23% win rate for the Trump administration, compared to the 70% win rate average for all administrations?

Judicial Party Affiliation Not an Explanation

One common explanation has been that the administration lost so frequently because of Democratic-appointed judges.

But the Trump administration’s win rate before Republican-appointed judges was 45%. For environmental cases, the win rate before Republican-appointed judges was not much higher—55%.

That compares to past studies finding agency win rates of up to 80% in front of partisan-aligned judges. Of course, the 16% win rate overall in front of Democratic-appointed judges was even lower, but the low win rate in front of partisan aligned judges is far outside the norm.

The statutory losses spanned a wide range of environmental and other issues. One federal district court held that the Trump administration’s efforts to allow gillnet fishing in whale feeding grounds were illegal. Another federal district court held that a policy imposing hurdles on nationalization for U.S. military members violated immigration law.

Yet another federal district court held that the Department of Education violated the Coronavirus Aid, Relief, and Economic Security Act when it favored private schools over public ones in disbursing funds. And an appeals court vacated the administration’s rollback of the Obama-era regulation of carbon emissions from existing power plants holding that EPA had fundamentally misconstrued the Clean Air Act.

Unreasonable Interpretations of Law

The low win rate was also not just due to corner-cutting, absent professionalism, or rushed rulemaking as commonly thought. We crunched the numbers where there was a written decision (i.e., excluding cases where the administration abandoned and withdrew its policy after a challenge was initiated). And while courts repeatedly held that agencies failed to provide a reasoned explanation for the agency action (78 losses) or failed to satisfy notice-and-comment requirements (26 losses), a far larger number of cases (117) had courts holding that an agency had relied on an unreasonable interpretation of the governing statute or lacked statutory authority.

Across these issues, the win rate in these cases did not vary dramatically, ranging from 24% for notice-and-comment violations to 30% for statutory authority issues.

Critical Lessons

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 remain within statutory limits, courts will serve as a bulwark.

The Biden administration has sustained some losses, but it has also fought off at least one challenge so far. By comparison, at this time in the Trump era, a major policy rolling back limits on methane emissions at oil and gas facilities had been vacated and multiple agencies had withdrawn policies after lawsuits were filed. (The ongoing chronological tracker that helped form the basis for the new study shows these cases).

For now, it is too early to make broad predictions about the Biden administration’s potential win-loss rate. But Biden-era agencies will 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.

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Author Information

Bethany Davis Noll is adjunct professor and executive director of the State Energy & Environmental Impact Center at NYU School of Law.

Julia Paranyuk, a recent graduate of New York University School of Law, contributed to this article.

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