Supreme Court Emphasizes That Threshold Questions Can Reshape Regulatory Litigation

Threshold questions involving reviewability, delegated authority, remedies, and agency structure must be resolved before reaching traditional APA review. Put differently, a regulatory action may fail before courts even evaluate whether an action is arbitrary and capricious. Taken together, these recent decisions — Mullins v. Doe, Learning Resources, Inc. v. Trump, Trump v. Slaughter, and Trump v. Cook — suggest a two-step inquiry:

• Is the claim properly before the court?
• If so, does the administrative record support the agency’s action?

Importantly, these threshold questions address whether the court may review the agency action at all, whether the proper decisionmaker acted, and whether the asserted authority exists in the first place. Only after those questions are resolved does the court reach the administrative record. If a challenge fails at the first step, the court never reaches the record, and thus never touches the APA. 

The practical consequence of this process is that litigation may be won or lost before a court ever reviews the administrative record. For regulated industries, understanding these threshold questions has become an essential component of regulatory risk management.

Statutory Preclusion: Mullins v. Doe

In Mullins v. Doe, the Court held that statutory language barring judicial review of Temporary Protected Status (TPS) designation and termination decisions foreclosed APA challenges to those decisions and the procedures underlying them.

The Court determined that it was barred from reviewing the non-constitutional claims, including under the APA, because of a provision of the TPS statute that stated, “There is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” The Court also found that the statutory bar against reviewing the ultimate termination decision also prevented challengers from using the APA or collateral procedural arguments to challenge the underlying processes that fed into the secretary’s decision. 

This ruling suggests that courts can look to a statute first to determine whether an APA claim is viable. In effect, the decision displaces the APA as the default center of gravity for regulatory litigation, reinforcing a two-step framework: a court must first confirm that the statute permits judicial review before proceeding to evaluate the agency’s record. For some categories of regulatory action, Mullins suggests that statutory review provisions, rather than the APA itself, may increasingly serve as the primary framework for judicial review.

For businesses, the lesson extends beyond immigration policy. Companies often assume that significant agency actions will ultimately be subject to APA review. Mullins demonstrates that US Congress can alter that assumption through statutory review schemes. Assessing whether a program is insulated from, or exposed to, judicial review may therefore become an important component of regulatory risk analysis before pursuing litigation or structuring compliance strategies.

Delegated Authority and the Major Questions Doctrine: Learning Resources, Inc. v. Trump

A second category — whether the statute actually delegates the authority the executive has used to support its actions — is illustrated by the Supreme Court’s recent decision on tariffs under the International Emergency Economic Powers Act (IEEPA). In Learning Resources v. Trump, challengers argued that the IEEPA did not authorize the president’s tariff program. The Court agreed, concluding that the IEEPA’s authorization to “regulate” importation did not clearly confer tariff authority. The Court further held that the asserted authority implicated the major questions doctrine because it involved a matter of vast economic significance traditionally committed to Congress.

By a vote of 6-3, the Court ruled that the tariffs exceed the powers given to the president by Congress under the IEEPA. The Court determined that the terms “regulate” and “importation” as used in the IEEPA could not provide the authority to impose tariffs, and that the Act did not otherwise reference tariffs or duties. The Court also found that President Trump’s reliance on the IEEPA to impose the tariffs violated the “major questions” doctrine — the idea that if Congress wants to delegate the power to make decisions of vast economic or political significance, it must do so clearly — particularly because the “power of the purse” is a “core congressional power.” 

For more information on the decision and implications for tariffs, see here and here.

This decision reinforces that the scope of delegated authority — particularly under the major questions doctrine — is itself a threshold question: if the statute does not clearly confer the claimed power, the action fails regardless of how well the agency’s record might otherwise support it.

The implications extend beyond tariffs. The implications are especially significant for sectors that depend on long-term regulatory certainty, including energy, infrastructure, manufacturing, and major development projects. Large regulatory initiatives involving energy, infrastructure, climate policy, technology, and other sectors may increasingly face challenges focused on whether Congress clearly delegated the authority being exercised. For businesses, the major questions doctrine creates both risk and opportunity. It may undermine the stability of existing regulatory programs while simultaneously creating new avenues to challenge economically significant government actions.

Agency Structure and Removal Authority: Trump v. Slaughter and Trump v. Cook

A third threshold question category — whether the decisionmaker is properly constituted and removable — is illustrated by recent cases on the removal of administrative officials. In Trump v. Slaughter, the Court held that the Federal Trade Commission’s (FTC) for-cause removal protection was unconstitutional, narrowing the traditional conception of independent agencies and reinforcing presidential control over regulatory decisionmakers. Soon after President Trump began his second term in January 2025, he fired the FTC’s two Democratic appointees, Rebecca Slaughter and Alvaro Bedoya. He did not identify a cause under the statute. President Trump instead told them their “continued service on the FTC [was] inconsistent with [his] Administration’s priorities,” and that they were removed “pursuant to [his] authority under Article II of the Constitution.” Slaughter filed suit against the president and other executive officials, seeking relief to restore her to office. She argued that her removal was ultra vires, violated the APA, and violated the US Constitution. 

The dispute required the Court to revisit nearly a century of precedent regarding removal protections for independent agencies. Overruling the Court’s 1935 decision in Humphrey’s Executor v. United States, the Court concluded that FTC commissioners are subject to presidential removal authority and that the statutory for-cause protection was an unconstitutional limit on executive power.

In contrast, Trump v. Cook preserved statutory protections for a Federal Reserve governor under a similar for-cause statutory protection at the preliminary injunction stage, emphasizing the Federal Reserve’s distinct institutional role. Read together, the cases indicate that removal authority is now a threshold issue, but outcomes will remain agency specific.

From a business perspective, these cases are not merely disputes about presidential removal power. They concern the degree of independence regulators possess from changing Administrations. The answer can affect policy continuity, enforcement priorities, and the longevity of regulatory initiatives. Companies evaluating investment decisions with a long tail may therefore need to consider not only what a regulator has decided, but also whether the regulator’s institutional structure is itself vulnerable to challenge.

Takeaways

As we have previously written about, the APA usually allows courts to consider only the existing administrative record when reviewing an agency decision to determine whether it was arbitrary and capricious. This standard is not absolute, but it makes consideration of the administrative record, including whether it can be permeated, a central issue in challenges to agency decision making.

However, collectively, these cases suggest that regulatory litigation is increasingly focused on foundational questions of authority rather than solely on the adequacy of an agency’s analysis. Before evaluating the administrative record, companies should consider:

• Is judicial review available?
• Is the claim properly framed?
• Is the requested remedy available?
• Does the agency’s structure present constitutional vulnerabilities?
• Does the governing statute clearly delegate the authority being exercised?

If a challenge fails at any of these stages, a court may never even reach the administrative record. As a result, regulatory durability increasingly depends not only on record defensibility but also on the legal foundations of the action itself. The emerging lesson is that regulatory success increasingly depends not only on building a defensible administrative record, but also on ensuring that the underlying action rests on a durable foundation of statutory and constitutional authority.

In sum, these cases suggest that regulatory risk assessments should evaluate both the substance of agency requirements and the durability of the legal framework supporting them. Questions that were once viewed solely as appellate or constitutional issues may now increasingly influence investment planning, permitting strategies, compliance decisions, and litigation risk.

Members of the firm’s Environmental and Environmental, Social & Governance teams regularly help clients understand the implications of new regulations and have broad experience in challenging regulations in federal and state courts.