President Trump has signed a number of executive actions since taking office, taking aim at everything from immigration and the size of the federal workforce to gender politics and the economy.
Before the ink had dried, challengers took legal action to block many of these actions from taking effect.
Less than three weeks into the new administration, courts are already considering challenges to Trump's declaration that the federal government will only recognize two genders, the Department of Homeland Security's departure from a decades-old policy that encouraged Immigration and Customs Enforcement to avoid places of worship and the "Fork Directive" email offering federal employees the option to resign in exchange for full pay and benefits through September.
At the center of these challenges is the question of whether the president's actions are directing federal agencies to violate a key standard established nearly 80 years ago in a law known as the Administrative Procedure Act.
The law was drawn up as a way to protect against agency overreach and actions that might be deemed "arbitrary and capricious." Groups are using it to challenge presidential policies by targeting the administrative agencies tasked with carrying out Trump's will.
Here's how the law works.
What is the Administrative Procedure Act?
Enacted in 1946 on the heels of the New Deal's expansion of governmental administration, the Administrative Procedure Act (APA) became both the foundation and a guardrail for all regulatory actions coming from the executive branch.
All Cabinet departments — like the Defense Department or the Treasury — as well as independent agencies, like the Securities and Exchange Commission, must comply with the APA in all policy actions or decisions.
The APA was signed by President Harry Truman and received bipartisan support after a decade-long effort by Republican and Democratic lawmakers.
Concerned with a burgeoning "administrative state" after the New Deal expanded the role of executive agencies, Republicans wanted judges to review and curb the executive branch's growing influence.
Democrats saw administrative action as an efficient means for advancing public policy since it doesn't need to go through Congress. They wanted to use the act as a road map directing agencies to set consistent, effective policies.
Why does the Administrative Procedure Act matter?
Presidents often enter office with a political agenda that touches on a number of issues. That agenda can become policy if a president is successful in pushing new laws through Congress.
Other times, a president may choose to set policy by issuing an executive action, which does not need to go through Congress to have legal force. However, the president cannot single-handedly turn ideas into actions. That is where executive agencies come in.
Most executive actions set a policy and then direct the responsible federal agencies to take steps to carry out that policy. For instance, declaring an emergency at the U.S.-Mexico border required a joint effort among the State Department, the Justice Department and the Department of Homeland Security, including some of its smaller agencies, like Customs and Border Protection.
If the president is the executive branch's brain, these agencies are the limbs. Carrying out the president's directive in an executive order requires these agencies to issue rules, policies and judgments that align with the president's stated goals.
Everything executive agencies do to implement the president's agenda must follow the APA.
Any time the Federal Communications Commission bans profanity from the airwaves, say, or whenever the Environmental Protection Agency issues a permit, the agency must comply with APA procedures.
This is one way to ensure the executive branch stays within its stated role, which Georgetown Law professor David Super told NPR's Morning Edition is important to preserving the meaning of U.S. laws.
"Our Constitution says the president shall take care that the laws are faithfully executed," said Super. If the president pushes policies that exceed our notions of what the executive can do, Super warns, "any president in the future can largely do whatever they want."
Importantly, the APA also allows anyone harmed by an agency's action to file a lawsuit stopping the agency from enforcing it. Federal courts then review the validity of the policy based on standards provided in the APA.
While not all of Trump's executive actions have implicated the APA, this is a key area in which groups are hoping to successfully challenge some of Trump's policies.
However, the use of this standard is not unique to those challenging the Trump administration. "Every president who has served since 1946," notes Super, "at one point or another has run up against the arbitrary and capricious standard."
What is an "arbitrary and capricious" agency action?
A core feature of the APA is protecting against "arbitrary and capricious" agency actions.
The goal for challengers is for judges to find an agency's policy so absurd that it is considered arbitrary, canceling its enforcement. Asked what this means in practice, Super explained: "That means that there have to be [permissible] reasons for things that are done."
"It's fine if I decide that your business should be suspended because you're selling dangerous foods, but it's not fine if I say your business should be suspended because I don't like you," he said.
This standard is useful because it allows courts to invalidate a policy even when the agency has otherwise complied with the APA's requirements, which include things like notifying the public of a proposed rule and inviting public commentary, or promptly explaining the denial of a grant application.
In other words, even if the agency followed all other APA rules in issuing an action, a court could still invalidate the action for being arbitrary.
However, an "arbitrary and capricious" review is not always an easy bar to meet. Judges must defer to an agency's decisions and findings, unless they seem patently unreasonable.
While plaintiffs could challenge agency actions under standards with a higher bar, it is incredibly common to challenge agency actions as "arbitrary and capricious" because this standard is commonly used to evaluate agencies' rule-making procedures and policy decisions.
When do courts tend to find that an agency action is arbitrary?
There are a number of reasons a court might strike down an "arbitrary" agency action. Some cases center on the evidence that agencies must provide to justify their actions. A court may find that the agency's evidence or fact-finding was incomplete or lacked merit.
Other actions are struck down for a clear error in the agency's judgment. Sometimes, a court is not satisfied that the agency considered every relevant alternative when formulating the policy.
The federal employees challenging the "Fork Directive" email couched this as a failure "to consider possible adverse consequences."
When agencies have a certain way of doing things — then suddenly depart from those practices without any explanation — a court may consider that departure arbitrary. While agencies do not have an obligation to issue lengthy explanations of policy changes, they typically must do enough to acknowledge the change.
Similarly, the challengers in the ICE enforcement case assert that DHS was required to, but did not, explain its change after 30 years of congregants relying on places of worship as a refuge from ICE operations.
An action is also invalidated under the "arbitrary and capricious" standard when it is otherwise prohibited by law. In Doe v. McHenry, a case brought last week by incarcerated transgender women suing to prevent their transfer to a male federal prison, the plaintiffs argue that Trump's "gender ideology" executive order is arbitrary in part because it violates their statutory rights.
Rarer are those agency actions that are blocked because a court is skeptical of policymakers' motives. In 2019, the Supreme Court struck down an attempt by Trump's Department of Commerce to include a citizenship question on the 2020 census, because, as Super highlights, Chief Justice John Roberts found the stated reasons for the agency's action "disingenuous."
How might this play out in the courts?
Some courts have already temporarily blocked some of Trump's executive actions, and there may be more actions ahead. However, a temporary pause is not the final word on whether an action is lawful.
After an action is halted, it cannot be enforced while the federal courts determine its legality.
If a court does determine a policy is unlawful, the federal government may still appeal it. Many of these challenges are expected to reach the Supreme Court, which will have the final say on whether the action is truly arbitrary.
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