The administration needs to get smarter if they want to succeed in court.
With the 2020 presidential campaign already underway, one of President Donald Trump’s best opportunities to seal a solid first-term legacy lies in his deregulation agenda — a goal broadly embraced by most Republicans. His administration already has 514 deregulatory measures in process, addressing issues as diverse as federal student loans and climate change.
Here’s why. Over the past few months, we pored through judicial records and tallied up how many lawsuits challenging deregulation filed after Trump became president have been successful and whether the deciding judges were appointed by Democratic or Republican presidents.
While it’s not predetermined that Democrat-appointed judges are always favorable to regulation, our research suggests such a pattern developing against the Trump administration. Of the 18 adverse verdicts, 13 were at the District Court level, where 10 of the judges were appointed by Democratic presidents. Of the five appeals court cases , all five panels had at least two judges appointed by Democratic presidents.
Second, agency leaders need to build an administrative record with factual findings that support deregulation. Without an appropriate administrative record of facts, no amount of creative lawyering can save a deregulatory action. Judges, regardless of who appointed them, will focus on the administrative record; the clearer this record can be, the more likely it is that the regulatory action will be affirmed.
Finally, the administration needs to consider carefully how federal deregulation will affect state and local regulation. In some situations, it might be preferable for the Trump administration to keep more federal regulations than it thinks is appropriate in order to avoid a backlash of state and local regulation, which might be more restrictive.
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