During Donald Trump’s four years as president, Supreme Court Chief Justice John Roberts forged a slim majority with the Court’s four liberals in certain cases to craft what colleagues called “administration-specific standard[s].” These cases popped up primarily in the context of administrative law—the field that governs how the administrative state is allowed to go about its business of promulgating, changing, and rescinding policies and rules—and thwarted Trump’s executive agenda on subjects from immigration to the Census. But these decisions don’t exist in a four-year vacuum. They bind all the courts in the country and will likely be applied against President Biden’s efforts to undo some Trump policies.
Consider Department of Homeland Security v. Regents, in which the Court struck down the Trump administration’s efforts to undo the Deferred Action for Childhood Arrivals (DACA) program. Though President Obama created DACA by mere executive order, Roberts wrote that Trump could not rescind the program without complying with the strictures of the Administrative Procedure Act (APA), as DACA recipients had relied on the program to make such life choices as taking jobs and buying houses.
Critically, as I explain in a longer paper, Roberts also heightened the burden that the APA imposes when one president tries to undo the acts of his predecessor. Under Regents, when a president tries to undo one of his predecessor’s policies, his administration must now do three things: separately consider each component of the policy, even if the components are intertwined; articulate a reasoned decision for rescinding each component and consider alternatives to rescission; and consider all the reliance interests—the extent to which people and businesses might have made hard-to-undo decisions based on the prior policy—and alternatives that might ameliorate an injury suffered by anyone who had depended on the original policy. No longer can an administration rescind a predecessor’s policy on the grounds that the policy was unlawful—an argument that, in Regents, Roberts wouldn’t even consider.
Another case, Department of Commerce v. New York, raises the bar still higher. Roberts, again writing for the majority, blocked the Trump administration’s attempt to add a citizenship question to the census. He allowed that the Department of Commerce, which oversees the census, had the power to add the question; that the decision to add it was reasonable and adequately explained; and that it was not improper for the Commerce secretary to enter office with preconceived preferences about it. Yet Roberts blocked the government from adding the question because, in his view, the reason the secretary gave for adding it seemed contrived. As a result, future administrations may not be able to change their predecessors’ policies simply because they have a different policy preference or principle. They will have to articulate a utilitarian reason for the change and ensure that the record reflects it.
These two precedents amount to a formidable new hurdle for any administration trying to undo its predecessor’s administrative agenda—especially Biden, who promulgated more executive orders and memoranda in his first month than George W. Bush, Barack Obama, and Trump combined. In particular, they could hinder Biden’s efforts to unwind Trump’s environmental and commercial deregulation. Biden has ordered executive agencies to “consider suspending, revisiting, or rescinding” all actions related to the environment passed during Trump’s tenure, and has targeted scores of Trump’s agency actions that relaxed restrictions on commerce. As with DACA, most of these efforts involve reliance interests and granted benefits and are quite complex.
Hundreds of programs potentially face the chopping block, but consider just one: Biden’s temporary halt, pending full rescission, of the Coastal Plain Oil and Gas Leasing Program, which determines where and on what terms companies can explore and drill for natural gas and oil in parts of the Alaskan wilderness. The 2017 tax bill mandates such a program, which the Trump administration drafted and initiated. Relying on that program, energy companies purchased material, hired employees and subcontractors, and secured financing for new ventures. Likewise, employees took new jobs, relocated, and secured housing, all in reliance on this program. Yet Regents and Department of Commerce require Biden to consider every component of a program that, on paper, spans thousands of pages. He must articulate reasons for rescinding each separate part. He must consider alternatives to rescission. And he must show that he has considered the complicated reliance interests and alternatives that would avoid harming the various stakeholders. Biden can’t rescind the program simply because he thinks it’s unlawful or because he disagrees with it as a matter of policy or abstract principle.
The Supreme Court may have blocked parts of Trump’s administrative agenda, but its opinions don’t have a four-year shelf life. By tripping up Trump, Roberts has laid a minefield for Biden.
This piece originally appeared in City Journal