The Trump administration’s Supreme Court loss over its “sloppy” attempt to end the DACA program is a familiar experience for this administration.

According to the Institute for Policy Integrity, Trump’s administration has failed nearly 93% of the time when its agency actions have been challenged in court — typically for violations of the Administrative Procedure Act (APA).

Democracy Forward’s team of APA litigators and experts has helped deliver legal blows to the Trump administration in successful challenges over, among other things, Trump’s unlawful halt of equal pay data collection, illegal delay of e-cigarette regulation, refusal of care rule, and unexplained weakening of nutrition standards for school meals.

The APA ensures that there is a transparent and public process for making rules and that agencies provide reasoned explanations for policy decisions. The APA is, it seems, anathema to the Trump administration.

We’re continuing to enforce the APA in these pending actions involving health care and immigration protections: (among many others!)
  • Representing Chicago in a lawsuit against the Trump administration’s unlawful refusal to reopen ACA enrollment amid COVID-19 — The ACA requires a special enrollment period be opened in response to “exceptional circumstances” like a pandemic, but the Trump administration refuses to follow the law and open enrollment. It has failed to provide a reasoned explanation for denying millions of Americans access to quality, affordable health care amid the deadly public health crisis. The administration’s decision is contrary to law, arbitrary and capricious, and in violation of the APA. Its unlawful action harms the City of Chicago, its uninsured and underinsured residents, and the millions of Americans residing in the 38 states whose ACA exchanges are managed by the federal government.
  • Challenging the State Department’s unlawful Public Charge policy change — Trump’s State Department changed its public charge policy to deny immigrants entry into the U.S. without providing the public advance notice or an opportunity to comment, and it failed to provide an adequate explanation for the change. We represent the City of Baltimore in challenging this violation of the APA — and the U.S. Constitution. Our lawsuit is supported by the United States House of Representatives, 19 states, 17 cities and counties, 10 civil rights organizations, five Maryland immigrant advocacy organizations, and scholars of immigration law. The court has already rejected the administration’s attempt to dismiss the case, and we are now litigating the case on its merits.
  • Demanding investigation into HUD’s secret and unlawful denial of DACA recipients for FHA-loans (and their misleading responses to Congress about it) — Lawsuits aren’t the only tool we are using to enforce the APA. We recently demanded that the HUD Inspector General investigate the unlawful actions Sec. Ben Carson’s agency took to deny DACA recipients access to FHA loans. We obtained records through a FOIA request that revealed the agency haphazardly created a secret policy to exclude DACA recipients from eligibility. HUD’s actions violate the APA requirements that there be reasoned decision making that’s not arbitrary and capricious and not developed in secret. Following our request, a bicameral group of members of Congress requested their own probe.

At last count, the Institute for Policy Integrity at the New York University School of Law found that the Trump administration has lost 79 of 85 cases involving federal agencies on deregulatory or policy issues — a historically low 7.1% win rate. (Most administrations have a 70% win rate). As The Washington Post noted, more than a few of these are cases we’ve brought on behalf of municipalities and organizations, successfully forcing the Trump administration to reverse course on illegal policymaking.

Our APA win column also includes:
  • School Nutrition Standards: A federal court ruled the USDA violated the APA by making changes it had not sought feedback on when it gutted sodium and whole-grain requirements in its final rule. The Obama-era standards were restored in full and the administration has announced it will not appeal the decision.
  • Equal Pay: A federal judge ruled that the Trump administration violated the APA with its “arbitrary and capricious” rollback of a critical equal pay protection. The administration was ordered to resume the collection of pay data from employers based on race, gender, and ethnicity. As a result of our suit, 90% of large employers provided this critical data necessary for the EEOC to enforce civil rights protections. Earlier this month, the D.C. Circuit Court of Appeals ruled the government’s appeal is moot.
  • Teen Pregnancy Prevention Program: Four federal courts ruled five consecutive times in cases brought under the APA that HHS’ abrupt and unlawful attempt to cut off $200 million in grants to the evidence-based Teen Pregnancy Prevention Program was unlawful. HHS reinstated the program in full.
  • Refusal of Care Rule: A federal court found the Trump administration violated the APA when it created a rule that would have allowed health care workers’ personal beliefs to dictate patient care. The rule was struck down in its entirety.
  • E-Cigarette Regulation: A judge ruled Trump’s FDA unlawfully delayed regulation of e-cigarettes as required by Congress, and the Fourth Circuit sealed the victory by rejecting an appeal. The court forced the agency to begin regulating e-cigarettes.