Four years ago, President Trump launched his deregulatory push with gusto.
His team rushed to undo the Obama administration’s environmental and energy regulations, promising a new era in Washington and installing Trump’s own regulatory agenda.
But as Trump’s sole term comes to a close, that deregulatory legacy remains tarnished and trammeled by the courts. Much of the administration’s efforts have been unable to survive legal scrutiny, while others await judgement that will come after President-elect Joe Biden takes office.
So far, the Trump administration has lost 83% of legal challenges to its regulations, guidance and agency memorandums, according to statistics compiled by the Institute for Policy Integrity at the New York University School of Law.
That record is among the worst in modern presidential history.
“It’s pretty shoddy,” said Bethany Davis Noll, litigation director for the NYU institute. “There are all these cases they lost at the beginning, and then only this year have we seen the big rollbacks. Since Trump didn’t win reelection, the administration isn’t going to be able to defend those in court.”
Biden’s team is widely expected to immediately request that the courts put many of the Trump-era regulatory battles on hold while the new administration figures out its next steps.
Trump’s “legacy is a bunch of losses and a bunch of big policies they couldn’t get out the door fast enough,” Noll said.
Typically, agencies prevail in court at a rate of 70% to 80%, as courts typically defer to agencies’ expertise, said John Cruden of the firm Beveridge & Diamond PC.
Trump’s lackluster court record means “almost all the things they attempted to deregulate will not last,” Cruden said.
Cruden worked in the Justice Department’s environmental division in Republican and Democratic administrations, eventually leading it during the Obama years.
“This administration’s environmental record,” Cruden said, “will ultimately be seen as an enormous aberration in comparison to environmental progress made by past Democratic and Republican administrations.”
Early on, the rush to score political points by repealing Obama rules caught up to the Trump administration in court. Federal judges frequently rebuffed EPA and other agencies for violating protocols required by the Administrative Procedure Act, including not adequately explaining their rationale for rule changes.
“They chafed at the requirements of administrative law all the way down the line,” said Lisa Heinzerling of Georgetown Law School. “I think they chafed at statutory requirements, procedural requirements. They especially never got really good at explaining themselves. It is almost like they just couldn’t accept that they needed to do that.”
Outside of the environmental and energy realm, that refusal to follow the APA led to two big administrative law losses at the Supreme Court that blocked Trump’s bids to end the Deferred Action for Childhood Arrivals, or DACA, immigration program and, separately,…