After identifying challenges to major rules using online databases, we traced the progression of these challenges through the courts. Using the final opinion in the litigation, we coded whether that challenge was successful, unsuccessful, or “mixed,” meaning multiple courts ruled differently on the challenge or a single court found some but not all challenged provisions of a rule invalid. Agencies sometimes jointly issue rules. For coding individual agency win rates, we assigned each rule to each issuing agency.
The top 10 rule-issuing agencies accounted for approximately 72% of the major rules in our study. All agencies outside the top 10 had a collective win rate of 49.4%. Of the top 10 rule-issuing agencies, three agencies’ major rules fared better in court than the overall average: the Federal Communications Commission (FCC), Department of Transportation, and U.S. Department of Agriculture. The Environmental Protection Agency (EPA) and Securities and Exchange Commission (SEC) had the lowest average win rates among the top 10 rule-issuing agencies. It is worth noting, however, that EPA rules also had the highest rate of mixed results, which could be viewed as partial wins in many cases.
Independent agencies (as defined in 44 U.S.C. § 3502, such as the Federal Reserve, FCC, etc.) issued only 24.4% of the major rules in the dataset. Of those major rules, only 15.6% were challenged, compared to 22.9% for executive agencies. Independent agencies had a higher win rate (57.4%) for their challenged major rules than executive agencies (47.3%) but with far fewer challenged major rules (68 versus 283). These results align with other studies’ findings that independent agencies often fare better in court than executive agencies.
Agencies commonly thought of as independent do not all share common features. Some scholars use other attributes to distinguish independent agencies from executive agencies instead of relying on the definition in 44 U.S.C. § 3502. One such attribute that could be relevant to the legal durability of an agency’s rules is whether an agency has a multimember structure (i.e., it’s led by a group rather than a single person). Our results suggest that multimember agencies are generally more successful in court than their single-headed peers.
Multimember agencies issued 21.1% of the major rules in the primary dataset. Of those, only 16.1% were challenged, compared to 22.4% for non-multimember agencies. Multimember agencies had a higher win rate (59.0%) than non-multimember agencies (47.2%) but again with far fewer challenged rules (61 versus 290). The win rate for multimember agencies (59.0%) is close to the win rate for independent agencies (57.4%). This similarity is likely due to the significant overlap between these two categories, particularly among agencies with major rules in our study.
