Over the last decade, federal regulations have faced increasingly more challenging hurdles. The Supreme Court’s 2024 decision in Loper Bright, putting an end to Chevron deference, and its 2022 decision in West Virginia v. EPA, announcing the “major questions doctrine,” have gotten the most attention. But the Court’s 2024 decision in Ohio v. EPA and its 2015 decision in Michigan v. EPA are also part of the equation. Moreover, since the second term of the Obama administration, state attorneys general of the party opposing the president have become aggressive litigants, often filing cases in single-judge divisions of judicial districts before sympathetic judges who frequently grant nationwide injunctions against the challenged rules. And since the first term of the Trump administration, incoming administrations have begun using a variety of tools, including disapprovals under the Congressional Review Act, to undo the regulatory output of predecessors of the opposite party.
Largely through empirical work, this Article explores how the Executive Branch has responded to these challenges—particularly during the last two years of the Biden administration—to make its regulations more resilient. First, the Article examines efforts to publish rules reflecting important administration policy priorities earlier in the last year of the president’s term than had previously been the case, thereby shielding them more effectively from hostile actions by an incoming administration. Second, the Article studies the far greater and far more robust use of severability as a tool to protect portions of regulations even if other portions of the same regulations are struck down. Third, the Article looks at the similarly more robust efforts of agencies to discuss the regulatory antecedents for their actions and, thus, improve their litigation position following Loper Bright and West Virginia v. EPA.
