Since their influence has declined exponentially over the last four years, Democrats are seeking to hamper President Donald Trump’s agenda through lawfare using the Administrative Procedures Act (APA).
Shortly after taking office, the president issued a flurry of executive orders related to eliminating “wokeness” in the federal government, cutting regulations and wasteful spending, and addressing illegal immigration.
Many of these orders are currently being challenged in court under the APA, which governs how federal agencies develop and implement regulations. Enacted in 1946, the legislation establishes procedures for rulemaking and judicial review. It was intended to ensure that federal agencies are transparent in how new regulations are created.
Federal agencies are required to go through a process to implement new regulations, including a notice-and-comment period allowing individuals and businesses to give their perspectives on the proposed rules. It empowers courts to review new rules to ensure that they do not violate constitutional rights or exceed executive authority.
Democrats have used this legislation to challenge several of Trump’s executive orders. For starters, 22 Democratic state governments are currently suing the administration over an executive order issued in January to end birthright citizenship. They argue that it also violates the 14th Amendment. A federal judge blocked the order, characterizing it as “blatantly unconstitutional.”
President Trump’s executive order putting a freeze on federal spending also met with legal challenges under the APA. Democratic leaders filed a lawsuit arguing that it violated the legislation because it was capricious and arbitrary. They contended that the administration failed to go through the proper procedures for implementing the rule.
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Democrats used the same strategy when challenging Trump’s executive order prohibiting biological males from competing in women’s and girl’s sports. Democratic attorneys general filed a legal challenge to the executive order, arguing that the administration has not sufficiently justified the order.
The APA has also been used against the Biden administration on several occasions.
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.
In a high-profile case during the Biden administration, a federal judge in Texas threw out an immigration enforcement policy that would have prioritized deporting violent criminals.
Among other things, District Judge Drew Tipton found that the administration had failed to take into account evidence about the dangers of recidivism and abscondment among immigrants with criminal records that undermined its policy conclusions.
The government, he added, was required "to show its work. It either failed or refused to do so. This was arbitrary and capricious."
Proponents of the APA might argue that it ensures that decisions are based on sound reasoning and compelling evidence. They would also assert that allowing public comment on each rule allows the people to have more of a say in regulations that might affect them.
On the other hand, the APA defines an “agency” in a way that does not explicitly include the sitting president. This could suggest that executive orders are not subject to the same provisions in the APA as rules and regulations issued by federal agencies like the ATF or USDA.
However, for each of these executive orders, the administration has laid out its arguments in favor of these actions even if they did not go through a public comment period. The reality is that even if they had, it is unlikely that the order would not still go into effect regardless. President Trump was elected in a landslide, which suggests that those who voted for him knew what actions he would take once he took office. Indeed, each of these executive orders are aimed at fulfilling promises he made on the campaign trail.
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