Ever since President Trump took office, his appointees have directed federal agencies to draft regulations meant to delay or reverse policies of the Obama administration.
Nearly all the proposals have been tripped up by the same arcane 1946 law governing administrative policies. Just last week, two signature administration actions — to add a question about citizenship status to the 2020 census, and to allow employers to avoid covering birth control for their workers if they object to it — have been stymied by rulings under the law.
That law, the Administrative Procedure Act, was written to make sure that the executive branch followed some basic steps when it wanted to change policies. Over time, courts have given it additional teeth by requiring regulators to follow certain processes and conduct certain analyses before making changes. The Trump administration appears to have repeatedly failed to hew to those standards.
“I think there was a lot of corner cutting by the administration,” said Josh Blackman, an associate professor at the South Texas College of Law in Houston, who has been critical of shortcuts in the regulatory process by both the Trump and Obama administrations.
An analysis by the Institute for Policy Integrity at New York University School of Law shows that more than 90 percent of court challenges to major Trump deregulatory actions have been successful so far. By the institute’s count, 30 big rules have been challenged, and the courts have found for the litigants 28 times.
Some of those rulings may change after appeals to higher courts, but administrative law experts said even the string of lower-court rulings was unusual. In a typical administration, the government wins on such challenges around 70 percent of the time, said Richard Revesz, a law professor at N.Y.U. who specializes in environmental law. “This is truly aberrational,” he said.
The law gives federal agencies a lot of latitude to write regulations, but it says that major actions have to follow certain steps. For big changes, agencies are supposed to go through what’s called “notice and comment”: They must issue a proposal, let the public respond with ideas, then incorporate feedback into a final version.
A lot of the losses came because the administration skipped those steps, instead announcing that it would pause or reverse pending rules — or that some emergency conditions justified an instant regulatory change. An earlier version of the contraceptive rule, and several environmental rules, including a suspension of Obama-era methane standards, were attempted without notice and comment.
But even some Trump policies that have followed the usual regulatory steps have been found to run afoul of the law’s standards for administrative process. The law says that the executive branch should be allowed to interpret the law as long as its decisions aren’t “arbitrary” and “capricious.”
“It’s a core protection against arbitrary governance,” said Gillian Metzger, a professor at Columbia Law School who studies administrative law.
Under modern case law, that means that agencies need to conduct analyses of the rule’s consequences and address serious critiques. But it’s still a standard that scholars say is quite deferential to agency preferences, once regulators do the work.
An attempt to allow Kentucky to impose work requirements on Medicaid beneficiaries was knocked down in June for failing to pass the test. The judge ruled that the administration had failed to adequately consider the possible negative consequences of the policy — primarily, that an estimated 95,000 poor Kentuckians would lose their health insurance. The administration went back, added more analysis, and began the program a second time, though the litigation continues.
A recent ruling on changes to the 2020 census also failed the test, according to a federal judge in New York. The judge said Wilbur L. Ross Jr., the Commerce secretary, broke “a veritable smorgasbord” of federal rules.
The rule-making sloppiness may reflect the president’s enthusiasm for deregulation, and the distrust of agency staff by many of his political appointees.
“It’s hard to understand as anything but a combination of haste and ineptitude,” said Nicholas Bagley, a law professor at the University of Michigan, who worked in the Obama administration Justice Department defending its regulations.
In many cases, it’s easy enough for regulators to bounce back from a loss on procedural grounds. Trump administration agencies may have better luck with their subsequent efforts, which are now underway in several areas where initial rule making was rejected by courts. Mr. Bagley said he expected the administration would fare better on many rules the second time around.
In other cases, flaws with process may be the least of the problem. Ultimately, regulations are required to comply not just with the Administrative Procedure Act but also with the underlying law that authorized them. “Sometimes, better analysis would show how harmful the policy is,” Mr. Revesz said.
Regulations have always been challenged under the Administrative Procedure Act, and successful challenges of major ones may be getting more common. As Congress has become more gridlocked, and as presidents have pushed the boundaries of executive authority, the courts have weighed in more often on boundary-stretching rules.
The Bush administration lost a string of cases over its environmental regulations. The Obama administration absorbed some setbacks, too, including a pause to its regulation on power plant emissions and an appeals court ruling against its creation of the DACA program to provide legal status to young people whose parents had come to the country illegally.
Studies have shown that, while the differences are small, politics does have a bearing on how closely judges scrutinize the quality of regulatory analysis. In general, judges appointed by Democrats tend to be more skeptical of rules written by Republican administrations, and Republican appointees are more dubious about Democratic rule making.
That means, as the courts become more conservative, the next ambitious Democratic president may also trip over the Administrative Procedure Act.