Lawrence Hurley writes:

Lawyers challenging President Donald Trump’s aggressive use of executive power in the courts are turning to a familiar weapon in their armory: an obscure but routinely invoked federal law called the Administrative Procedure Act.

While lawsuits challenging such provocative plans as ending birthright citizenship and dismantling federal agencies raise weighty constitutional issues, they also claim Trump failed to follow the correct procedures as required under the wonky 1946 statute.

Trump fell afoul of the law in some high-profile cases that reached the Supreme Court during his first term, raising the possibility he could suffer the same fate this time around.

Known in abbreviated form as the APA, the law allows judges to throw out federal agency actions that are “arbitrary and capricious” on various grounds, including failing to articulate why the agencies are changing policy.

Much to the anger of Trump and his officials, judges have been issuing a series of orders putting administration plans on hold, including freezes on federal funding and drastic reductions in staffing. The rulings are at a preliminary stage and often do not include detailed legal reasoning.

In fact, one of Trump’s first losses in court in his second term — over an Office of Management and Budget memo ordering across-the-board funding freezes — was based in part on a claim brought under the APA. The administration quickly rescinded the memo, although litigation continues.

“What we’re seeing from the Trump administration is they are moving so fast, and they’re trying to do so much with so little reasoning, and they’re trying to disrupt as much as possible, as fast as possible, that these actions are inherently arbitrary and capricious” under the APA, a lawyer involved in one of the lawsuits said. [Continue reading…]