Today’s Ad Law Reading Room entry is “New Challenges for Federal Regulations: Executive Branch Responses,” by Richard L. Revesz, which is forthcoming in the NYU Law Review. Here is the abstract:

Over the last decade, federal regulations have faced increasingly more challenging hurdles. The Supreme Court’s 2024 decision in Loper Bright v. Raimondo, 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. And 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. Moreover, 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 relatively earlier in the last year of the president’s term, thereby shielding them, to a far greater extent than had previously been the case, 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 that agencies have undertaken to discuss the regulatory antecedents for their actions, as a way to improve their litigation position following Loper Bright and West Virginia v. EPA.

As readers of this blog are well aware, agencies operate within an increasingly hostile judicial review environment. From Loper Bright to the major questions doctrine, Ohio v. EPA and beyond, federal regulators face an expanding array of hurdles. How are agencies changing their own behavior in response? Adding to the growing body of scholarship asking that question, Revesz’s article is an engaging and important contribution. With a focus on the final two years of the Biden administration, “New Challenges for Federal Regulations” is rich with data and detailed case studies. It explores not only what agencies have done but also what they could do better. In doing so, it adds considerably to our understanding of the present-day administrative state.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.