A series of recent US Supreme Court decisions has fundamentally shifted how regulatory challenges must be approached, placing threshold questions ahead of traditional administrative review.
Businesses have long focused on whether agency actions are arbitrary and capricious under the Administrative Procedure Act, but that inquiry may never be reached under the emerging framework.
Four key decisions, Mullins v. Doe, Learning Resources, Inc. v. Trump, Trump v. Slaughter, and Trump v. Cook, collectively establish a two-step litigation inquiry courts are now applying.
The first question is whether a claim is properly before the court at all, and only then does review of the administrative record become relevant.
In Mullins v. Doe, the Court held that statutory language barring judicial review of Temporary Protected Status decisions foreclosed APA challenges to those decisions and their underlying procedures.
The relevant TPS statute stated, “There is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”
The ruling signals that Congress can effectively remove entire categories of agency action from standard APA scrutiny through carefully drafted statutory review provisions.
In Learning Resources, Inc. v. Trump, the Court examined whether the International Emergency Economic Powers Act actually delegated authority to impose tariffs, ultimately concluding it did not.
By a vote of 6-3, the Court ruled that the tariffs exceed the powers given to the president by Congress under the IEEPA, finding that the terms “regulate” and “importation” could not support tariff authority.
The Court also found that President Trump’s reliance on the IEEPA to impose the tariffs violated the “major questions” doctrine, particularly because the “power of the purse” is a “core congressional power.”
The major questions doctrine holds that if Congress wants to delegate the power to make decisions of vast economic or political significance, it must do so clearly, raising the bar for broad executive regulatory action.
In Trump v. Slaughter, the Court addressed whether FTC commissioners could be shielded from presidential removal, ultimately overruling the Court’s 1935 decision in Humphrey’s Executor v. United States.
President Trump had told commissioners Rebecca Slaughter and Alvaro Bedoya that their “continued service on the FTC [was] inconsistent with [his] Administration’s priorities,” removing them without identifying a statutory cause.
The Court concluded that FTC commissioners are subject to presidential removal authority and that the statutory for-cause protection was an unconstitutional limit on executive power.
Trump v. Cook, by contrast, preserved statutory protections for a Federal Reserve governor at the preliminary injunction stage, emphasising the Federal Reserve’s distinct institutional role in the US financial system.
Together, these cases mean that removal authority is now a threshold issue in regulatory litigation, but outcomes will remain agency specific depending on institutional structure and statutory design.
For regulated industries including energy, infrastructure, manufacturing, and major development projects, the practical consequence is that litigation may be won or lost before a court ever reviews the administrative record.
Regulatory risk assessments should now evaluate both the substance of agency requirements and the durability of the legal framework supporting them, including whether judicial review is even available in the first place.
Questions that were once viewed solely as appellate or constitutional issues may now increasingly influence investment planning, permitting strategies, compliance decisions, and overall litigation risk exposure.
The emerging lesson is that regulatory success increasingly depends not only on building a defensible administrative record, but also on ensuring the underlying action rests on a durable foundation of statutory and constitutional authority.