Supreme Court Emphasizes That Threshold Questions Can Reshape Regulatory Litigation

Short summary

Recent US Supreme Court decisions suggest regulatory litigation now follows a two-step inquiry: first, whether the claim is properly before the court (reviewability, delegated authority, remedies, agency structure), and only then whether the administrative record supports the agency's action. Cases like Mullins v. Doe and Learning Resources v. Trump illustrate that statutory preclusion and the major questions doctrine can derail APA challenges before the record is ever examined. Businesses must assess threshold questions as part of regulatory risk management.

• •Supreme Court decisions establish a two-step framework: threshold questions before APA record review
• •Statutory preclusion (Mullins) and major questions doctrine (Learning Resources) can block APA challenges entirely
• •Companies should evaluate reviewability and delegated authority before pursuing regulatory litigation

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