Supreme Court rulings are reshaping how regulatory litigation proceeds by emphasizing that threshold questions can determine outcomes before a court ever reviews an agency’s administrative record. In recent decisions, the Court has signaled that a regulatory action may fail before the court even evaluates whether the action was arbitrary and capricious. These cases — Mullins v. Doe, Learning Resources, Inc. v. Trump, Trump v. Slaughter, and Trump v. Cook — suggest a two-step inquiry: first, confirming that a claim is properly before the court, and second, determining whether the administrative record supports the agency’s action.
Statutory language often forecloses judicial review of agency determinations, as seen in Mullins v. Doe. The Court held that a provision barring review of Temporary Protected Status decisions prevented challenges to those decisions and the procedures underlying them. The Court determined it was barred from reviewing non-constitutional claims because the statute stated there is no judicial review of any determination by the Secretary of Homeland Security regarding the designation, termination, or extension of a foreign state.
The ruling suggests that courts can look to a statute first to determine whether an APA claim is viable. For businesses, the lesson extends beyond immigration policy. Companies often assume that significant agency actions will ultimately be subject to APA review, but Mullins demonstrates that Congress can alter that assumption through statutory review schemes. Assessing whether a program is insulated from judicial review may therefore become an important component of regulatory risk analysis before pursuing litigation.
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A second category involves whether the statute actually delegates the authority the executive has used to support its actions. This is illustrated by the Supreme Court’s decision on tariffs under the International Emergency Economic Powers Act (IEEPA) in Learning Resources, Inc. v. Trump. The Court ruled that the IEEPA did not clearly authorize the president’s tariff program, finding that the terms “regulate” and “importation” could not provide the authority to impose tariffs.
The Court further held that the asserted authority implicated the major questions doctrine because it involved a matter of vast economic significance traditionally committed to Congress. By a vote of 6-3, the Court concluded that the tariffs exceed the powers given to the president under the Act. This decision reinforces that the scope of delegated authority is itself a threshold question: if the statute does not clearly confer the claimed power, the action fails regardless of how well the agency’s record might otherwise support it.
The implications extend beyond tariffs to sectors that depend on long-term regulatory certainty, including energy, infrastructure, and manufacturing. Large regulatory initiatives involving energy, infrastructure, climate policy, and technology may increasingly face challenges focused on whether Congress clearly delegated the authority being exercised. For businesses, the major questions doctrine creates both risk and opportunity. It may undermine the stability of existing regulatory programs while simultaneously creating new avenues to challenge economically significant government actions.
Regulated industries are facing a shift in litigation strategy where foundational questions of authority often determine the outcome of a case. If a challenge fails at the threshold stage, the court never reaches the administrative record, and the agency’s substantive decision stands. This structural change means that regulatory durability increasingly depends not only on record defensibility but also on the legal foundations of the action itself.
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A third threshold question category involves whether the decisionmaker is properly constituted and removable. In Trump v. Slaughter, the Court held that the Federal Trade Commission’s for-cause removal protection was unconstitutional, narrowing the traditional conception of independent agencies. The decision overruled the Court’s 1935 decision in Humphrey’s Executor v. United States, concluding that FTC commissioners are subject to presidential removal authority.
Soon after the President began his second term, he fired the FTC’s two Democratic appointees, Rebecca Slaughter and Alvaro Bedoya. He did not identify a cause under the statute, telling them their “continued service on the FTC [was] inconsistent with [his] Administration’s priorities.” Slaughter filed suit, arguing that her removal was ultra vires, violated the APA, and violated the US Constitution.
In contrast, Trump v. Cook preserved statutory protections for a Federal Reserve governor under a similar for-cause protection at the preliminary injunction stage, emphasizing the Federal Reserve’s distinct institutional role. Read together, the cases indicate that removal authority is now a threshold issue, but outcomes will remain agency specific. [2]Carolina Businesses may find similar challenges await.
