Our study preliminarily analyzed the Biden Administration’s major rules issued through early December 2023. Because the Biden Administration is still issuing rules and most challenges to its finalized rules remain ongoing, comparisons to previous administrations could be misleading. This administration’s rules are thus excluded from the primary dataset; findings related to them are presented below.
The data through early December 2023 finds that the challenge rate to the Biden Administration’s major rules (20.1%) is more in line with earlier administrations than the Trump Administration.
The Biden Administration’s win rate (40.7%) is above the Trump Administration’s win rate but below that of previous administrations, even when looking by first presidential terms. This preliminary data suggests that the Trump Administration’s unusually low win rate may have been a dip in a longer downward trend.
Forum Shopping
One of the more notable findings in the preliminary analysis of the Biden Administration’s major rules is the increase in indicators of forum shopping. The D.C. courts (meaning both the D.C. District Court and the D.C. Circuit) continued to decline as a top venue of choice for initial filings.
More strikingly, the four U.S. District Courts in Texas alone accounted for over 25% of all venues where challenges to the Biden Administration’s major rules were initially filed. And when grouping by circuit (to include challenges initially filed in either a district court in a given circuit or the court of appeals for that circuit), the Fifth Circuit accounted for 37.8% of all venues where challenges to the Biden Administration’s major rules were initially filed. Excluding the D.C. Circuit, the Fifth Circuit’s share of initial filings is the highest for any circuit for any administration. These datapoints align with a common perception that forum shopping, while not new, has increased under the Biden Administration.
