Legal arguments that curbed several of the Trump administration’s most far-reaching executive actions could be used to slow President Joe Biden’s most ambitious climate and environment plans, especially if Congress is unable to act.
Last month, Louisiana district court Judge Terry A. Doughty cited several Trump-era cases as rationale for striking down Biden’s temporary pause on oil and gas leases on federal lands—a sweeping executive order that was part of Biden’s plans to chip away at climate change impacts.
Doughty’s analysis was riddled with case law from litigation over former President Donald Trump’s executive orders and declarations, including fights over emergency border wall funding and construction.
“If President Biden and his agencies do not carefully, again, follow required process and allow comments where appropriate and look at facts on the ground, this body of law gives judges and litigants lots of language to use,” Georgetown University law professor William Buzbee said.
The opinion was also underpinned by a number of other Trump-era losses, including those involving agencies, which made up the bulk of legal challenges against his presidency.
The Trump administration had a 23% win rate in court challenges to its agency actions, according to data from the nonprofit Institute for Policy Integrity. The group calculated an administration’s “loss” to mean a legal ruling against it or its withdrawal of an action after being sued.
That number is a stark contrast to the average 70% win rate of previous administrations, said Bethany Davis Noll, executive director of the State Energy & Environmental Impact Center and an affiliated scholar at the Institute of Policy Integrity who’s tracked Trump administration courtroom outcomes.
“Courts will provide a check when an administration tries to act outside the bounds of its statutory authority,” Davis Noll said in an email.
Though Davis Noll anticipates Biden’s courtroom success rate to be closer to the norm than Trump’s, she said his administration still provides a lesson.
“The Trump administration lost a lot of cases because of sloppiness and corner-cutting,” she said. “But it lost many more because it lacked statutory authority for the chosen actions.”
‘Redefined’ Executive Orders
Trump signed a thicket of 220 executive orders—the most in a single term since Jimmy Carter—but the successful challenges against them focused less on raw numbers and more on Trump’s willingness to test the legal limits of presidential power in ways that many modern presidents haven’t, several legal authorities told Bloomberg Law.
“In some ways, instead of talking about what executive orders used to be, we’re talking about what has been redefined as the executive order by the Trump administration,” said Donald Kochan, a law professor at George Mason University’s Antonin Scalia Law School.
In fact, many of Trump’s the most far-reaching executive orders ended up in front of judges: An executive order banning Muslims from entering the U.S. was struck down twice—before a third version was upheld by the Supreme Court. Other orders on the launch of Arctic oil and gas leasing, border wall funding, refugee admittance, and sanctuary cities, also hit snags with judges.
The rulings left a case law legacy that could give Biden pause before even trying to push certain policies through executive order, said Wayne D’Angelo, who chairs Kelley Drye and Warren LLP’s energy practice.
“For those that are looking to challenge an executive order, it provides fertile ground for showing that executive orders can be challenged, that they are not immune from procedural requirements,” D’Angelo told Bloomberg Law.
While Trump issued the most executive orders in a single term in four decades, it wasn’t by a lot—Bill Clinton signed 200 in his first term, and George W. Bush issued 173. Biden has been active as well, signing 51 in his first seven months in office.
A main function of the executive order is to act as instructions for agencies to exercise their legal authority. But Kochan noted that the most controversial Trump-era orders pushed the limits of that traditional ministerial definition.
The legal challenges resulted in what Kochan called “dangerously fuzzy precedent” that could be used to challenge previously legitimate executive action as suspension of rules versus agency directives.
“The litigation against Trump has created a set of precedents that are open ended enough that a court can find a way to be more critical of executive order as being more than just guiding agencies in their implementation of law,” Kochan said.
Clearer language on standing to sue is also now on the table, which “opens the door” for more suits that would normally fail to establish standards such as traceable injury, according to D’Angelo.
Plaintiffs, for example, established imminent harm in League of Conservation Voters vs. Trump, which hinged on Trump’s revocation of Obama-era land withdrawals in the Arctic, and which was cited in Doughty’s leasing order, D’Angelo said.
Need For Caution
Any diminishing of the role of the executive order could be especially important on the environmental front, because without congressional action on big, bold climate initiatives, some of Biden’s most important environmental agenda items could hinge on the power of the presidency.
At a Bloomberg Sustainable Business Summit last week, climate adviser Gina McCarthy said if Congress won’t act on a clean energy standard, the White House will. But clearer legal limits on presidential power and the lengthy rulemaking process could have significant implications for Biden’s ability to carry through on his climate agenda within his time in office.
“The wider you swing, the more unfavorable case law you draw, and the Trump administration swung big on a lot of policy changes,” D’Angelo said, adding that Biden is likely looking to avoid starting off with similar losses.
Perhaps adding to Biden’s challenges is Trump’s success in remaking the federal judiciary, leaving a high chance that legal action against his executive orders could be heard by a Trump-appointed judge—like Doughty.
And those judges seem more willing to challenge things like a temporary pause on oil and gas leases, said University of California Berkeley law professor Dan Farber.
“I think there’s a lot of reasons for the Biden administration to be cautious and do as much as they can to make sure their actions are actually going to be defensible before judges who are often not going to be very sympathetic,” Farber said.