Trump opens new fronts in federal regulation battle
Constitutional rulings are boosting attempts to curb regulators’ reach
Efforts to whittle away US regulations are set to accelerate in 2026 thanks in part to the Trump administration’s pro-business policies and to courts taking a more sceptical view of how far regulators’ discretionary powers extend.
From the Federal Reserve to the Environmental Protection Agency, US regulators are under pressure. Between President Donald Trump’s inauguration in January and October 22, some 13 federal regulations were rescinded, according to the Brookings Institution think-tank. These include rolling back a proposed menthol cigarette ban and minimum wage increases for federal contractors that had been scheduled for January by his predecessor Joe Biden.
The regulatory rollbacks are expected to increase sharply in the new year: another 17 regulations are in the process of being cut, the Brookings Institution said.
Aside from executive orders issued from the Oval Office scrapping directives from Democratic administrations, others introduced by federal watchdogs are being contested on the grounds that — based on constitutional challenge — they lack statutory authority.
“We can expect more litigation in 2026 as the administration finalises more regulatory rollbacks,” says Cary Coglianese, head of the University of Pennsylvania law school’s programme on regulations.
In 2024, the Supreme Court overturned a 40-year precedent giving federal agencies wide latitude to write regulations. The legal doctrine, known as Chevron deference, stems from a 1984 Supreme Court decision involving the oil company.
Based on that case, courts generally deferred to agencies when they were writing rules to implement ambiguous Congressional statutes. But last year the Supreme Court made it easier for opponents of particular regulations to challenge the way they interpreted the underlying law. This sparked a wave of legal challenges to federal regulations in the last months of the Biden administration.
The White House has broadened the attack on regulations introduced during Democratic administrations by arguing that they lack statutory authority from Congress and are invalid.
Such battles to reverse or scrap regulatory policies are not new. When Biden took office in 2021, his administration was able to rescind auto emissions rules at the EPA and immigration rules at the Department of Homeland Security simply by not defending them in court as the first Trump administration had. In other instances, Biden officials withdrew regulations proposed under Trump but never finalised.
Aside from established tit-for-tat tactics, Trump in his second term has a powerful additional tool after Chevron deference was overturned.
Few have more experience challenging regulations than Eugene Scalia, partner at Gibson Dunn. During the tail-end of Biden’s term, Scalia led lawsuits attacking climate disclosure rules, regulations for private funds and the Federal Trade Commission’s ban on non-compete agreements that make it hard for workers to change jobs.
Son of the late Supreme Court Justice Antonin Scalia, he has carried on his father’s conservatism by specialising in anti-regulation crusades and served as US secretary of labour for the final 16 months of Trump’s first term. His clients have included Walmart, Boeing, MetLife and a host of business groups including the US Chamber of Commerce, the Managed Funds Association and the Business Roundtable.
“Courts today are more focused than ever on the necessity that agencies stay within the lanes set down by Congress — respecting statutory limits on agency authority, and processes required by the Administrative Procedure Act,” says Scalia. “And courts recognise the importance of sometimes asking whether Congress itself observed the bounds on its authority, or instead encroached on executive authority or ceded too much congressional responsibility to the agencies.”
Still, the regulatory combat is not one-sided. Liberal states have challenged the regulatory interventions. In June, California sued the Trump administration to preserve the state’s clean air regulations. In November, 22 states sued the Education Department to stop a new federal rule limiting loan forgiveness for public workers such as teachers. “In the next three years, we’ll see a lot more challenges to federal action by progressive organisations and [Democratic] ‘Blue States’ than we saw under President Biden,” Scalia predicts.
Democrats are also trying to restore Chevron deference with Congressional legislation introduced in November. “We are seeing the Trump administration dismantle systems created to ensure that federal regulation prioritises public safety,” Democratic congresswoman Pramila Jayapal said in November.
Though many businesses are pleased with Trump’s attack on regulations, other policies are far more controversial. Last month, the US Chamber of Commerce joined others pressing the Supreme Court to rule against Trump’s use of emergency tariff powers.
A decision in the case, expected in the months ahead, could throw one of the President’s signature policies into turmoil. “The administration has made no secret of the fact that there are areas — like immigration and tariffs — where it will pursue policies not embraced by all American businesses,” Scalia says.
Coglianese says the Trump administration is unlikely to succeed in all claims against regulatory agencies: “Although the administration may garner some wins, it can also expect losses, too — perhaps plenty of them.”
