Major Rules in the Courts: An Empirical Study of Challenges to Federal Agencies’ Major Rules

Authors

Libby Dimenstein
Donald L. R. Goodson
Tyler Szeto

Document Type

Article

Abstract

Since at least the 1990s, presidents have seen the administrative state as a key tool, if not the primary one, for achieving policy objectives. At the same time, the administrative state has faced growing scrutiny, particularly from members of the Supreme Court. Given these dynamics, do some administrations’ regulatory actions fare better in court than others? Are there any trends we can see over time? These are some of the questions we sought to answer in the first empirical study of how major rules, as defined under the Congressional Review Act (“CRA”), fare in federal court. We chose major rules for several reasons, namely, the ability to conduct an apples-to-apples comparison across administrations while focusing attention on the most important agency actions. The study of the primary dataset summarized in this Article covers each of the 1,872 major rules issued from the CRA’s enactment in 1996 through the end of the first Trump Administration. To our knowledge, the primary dataset’s roughly 24-year period covering four administrations (two from each party) is the longest continuous time span of any empirical study of agency win rates. The Article’s title is perhaps ironic given that most major rules (78.7%) do not end up in court, which is itself notable because most previous studies of agency win rates focus only on the relatively small percentage of agency actions that end up in court. Our study finds that the challenge rate has steadily increased over time, rising from 16.8% for the Clinton Administration to 28.0% for the first Trump Administration. Courts are thus resolving more challenges to major rules than they once did. Our study also finds lower agency win rates than other studies, which typically report win rates of 60–70%. In contrast, our study finds win rates of 49.4% or 56.9%, depending on the unit of analysis (major rules or controlling opinions resolving challenges to major rules). Our study further finds that win rates declined over time: The Clinton Administration saw 63.0% of its major rules upheld and 63.3% of controlling opinions rule in favor of its major rules; the first Trump Administration saw 32.1% of its major rules upheld and 45.4% of controlling opinions rule in favor of its major rules. The two intervening administrations were in between but closer to the range’s upper end. Our results suggest that, while agency win rates declined over time, the first Trump Administration’s win rates were unusually low. In addition to documenting these agency challenge and win rates, we also collected data on other topics including forum shopping, differences between independent and executive agencies, partisan trends, Chevron deference, and more. We conclude with observations to date on the Biden Administration’s major rules. Because the Biden Administration only recently concluded, and many challenges to its finalized rules remain ongoing, we analyze its major rules separately from our primary dataset. Based on data collected in January and February 2025, agency win rates have not returned to their earlier highs: The Biden Administration has seen 40.5% of its major rules upheld and 45.5% of controlling opinions rule in favor of its major rules. All told, our study suggests that the conventional wisdom that agencies win two-thirds of the time no longer holds true, at least not for major rules. But the vast majority of major rules go unchallenged, revealing that most major rules survive, despite declining trends in agency win rates during the first Trump Administration and Biden Administration.

DOI

10.37419/LR.V13.I1.1

First Page

1

Last Page

71

Recommended Citation

Libby Dimenstein, Donald L. Goodson & Tyler Szeto, Major Rules in the Courts: An Empirical Study of Challenges to Federal Agencies’ Major Rules, 13 Tex. A&M L. Rev. 1 (2025).
Available at: https://doi.org/10.37419/LR.V13.I1.1