Because of the Biden administration’s ambitious regulatory agenda, federal courts over the last few years have had to address the statutory and constitutional boundaries up to which agencies can enact and enforce regulations. The U.S. Supreme Court and lower courts contended with the Biden administration over major policy initiatives, like vaccine mandates and student loan forgiveness, and the Supreme Court restrained federal agency power in landmark decisions. The court overruled Chevron deference, made it easier to avoid the six-year statute of limitations for challenging regulations under the Administrative Procedure Act, and made it more difficult for agencies to bring lawsuits in their home administrative forums.

Because the incoming Trump administration has promised deregulation and less aggressive agency enforcement, the administrative law battles will likely shift. Instead of focusing on the outer bounds of federal agency power, courts will likely have to tackle questions about federalism and the ability of states and special interest groups to impose (rather than impede) regulation through litigation. Historically, when federal agencies enforce regulation less aggressively or decline to promulgate rules, state and private enforcers step up activity to restrain industry. A reverse federalism emerges, where litigants fill regulatory gaps that they perceive at the federal level. That trend has become more pronounced in recent years, as politics have become more polarized. Many State AGs and advocacy groups have already announced lawfare strategies to challenge President-elect Trump’s deregulatory goals and to perpetuate some of the policies initiated by the Biden administration.