Because litigation is slow, one-term presidents face an uphill battle to finalize regulations early enough for litigation to end before the administration does. If litigation is not complete, an incoming administration may choose not to defend the rule, or else end the litigation by stipulation (for example, dismissing an appeal of a lower court loss) or otherwise coming to an agreement with the parties to dismiss the case. In fact, of all challenges to rules from the first Trump Administration that resolved after the end of Trump’s first term, 55% were ended by stipulation of the parties, rather than a reasoned court opinion.
For the first Trump Administration and the Biden Administration, we examine the status of litigation for challenged major rules at the end of the term, broken out by when the rule was finalized. Where there are multiple challenges to a single rule, we track the rule that is furthest along in the litigation process. Thus, our figures may overestimate the percent of challenges that are completed.
The data show a substantial decrease in the likelihood a case reaches completion based on when in the term the rule is promulgated. Under the Biden Administration, 81% of challenged rules finalized in the first year had at least one challenge reach completion. This ratio drops precipitously over time. By year 2, only 47% of such rules had completed litigation. By year 3, only 22%. And of challenged rules finalized in year 4, a mere 3% completed the litigation process. We aggregate the two administrations, below.
