Lawsuits challenging Trump policies raise big constitutional questions, but they also rely on a law that requires the government to follow the correct procedures when changing course.
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This obscure law is one reason Trump's agenda keeps losing in court
Lawsuits challenging Trump policies raise big constitutional questions, but they also rely on a law that requires the government to follow the correct procedures when changing course.
“Lawyers challenging President Donald Trump's aggressive use of executive power in the courts are turning to a familiar weapon in their armory: an obscure but routinely invoked federal law called the Administrative Procedure Act.
While lawsuits challenging such provocative plans as ending birthright citizenship and dismantling federal agencies raise weighty constitutional issues, they also claim Trump failed to follow the correct procedures as required under the wonky 1946 statute.
… Known in abbreviated form as the APA, the law allows judges to throw out federal agency actions that are "arbitrary and capricious" on various grounds, including failing to articulate why the agencies are changing policy.
… The APA haunted Trump during his first term.
…
In 2019, the Supreme Court found that the administration had not revealed its true reason for wanting to add a citizenship question to the census.
"Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction," Chief Justice John Roberts
wrote then.
A year later, the court ruled that the administration had failed to consider various factors when it sought to unwind the Obama administration policy that protects "Dreamers" from deportation. Its actions were "arbitrary and capricious" under the APA,
Roberts wrote.
On both issues, Trump administration officials "were sloppy, and the court did not like that," said Jonathan Adler, a professor at Case Western Reserve University School of Law.
… Trump is by no means the only president to have fallen afoul of the APA, which judges routinely cite in striking down federal agency actions on a wide variety of issues, including environmental and consumer regulations that agencies sometimes spend years reviewing. …”
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The APA is not “obscure” at all inside the beltway or among government litigators — it is a frequently used tool that gives the judiciary a good bit of leeway to review rules changes, so seems a weird way to frame it.
