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Tuesday, Feb. It is already clear that President Joe Biden will be implementing a large number of his policies through executive action. The reason is equally obvious: Democrats control both houses of Congress, but with a split in the Senate and thin majority in the House of Representatives, it will be challenging to enact ambitious legislation.

Whether the issue involves climate change, Anaoysis, occupational safety or civil rights, executive action might be the only game in town. Regulations are a primary vehicle for executive action, and they are often challenged in court. The federal judiciary now includes more than judges chosen by former President Donald Trump.

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In recent years, the Supreme Court has issued two rulings that loom particularly large, and that could turn out to impose serious obstacles. The first of those rulings — a big setback for President Barack Obama — emphasizes the importance of cost-benefit analysis. The second — a big setback for Trump — underlines the need for agencies to give careful consideration to how disruptive a regulatory change might be to people who relied on the previous rules and requirements. In Michigan v.

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In listing mercury as a hazardous air pollutant suitable for regulation, the EPA considered the benefits of that regulation, but not the cost. The Supreme Court struck its decision down. Its central conclusion was that it was unreasonable, and therefore unlawful, to look at just one side of the ledger — to take account of the benefits of regulation without also taking account of the costs. Whenever an agency is permitted by law to consider Sunsetin, yet fails to do so, its decision will be invalidated. Just considering costs might not be enough. If the benefits of a source are low and if its costs are high, courts might strike it down.

In Department of Homeland Security v. That might turn out to be a challenge for the Biden administration. Over a period of decades, federal judges, Analysis Of Cass Sunstein s Simpler And by both Democratic and Republican presidents, have built up a set of principles to restrict the power of executive agencies — by, for example, requiring careful consideration of alternatives, detailed attention to public comments and persuasive explanations for their decisions. These principles can easily be seen to be part and parcel of the rule of law. More info created a lot of trouble for the Trump administration, which had an abysmal record in court.

Both Republican and Democratic judges have policed arbitrariness from the executive branch — sometimes by requiring consideration of regulatory costs, sometimes by emphasizing the need to consider reliance interests and always by requiring agencies to offer reasoned justifications for their choices. Cass R. Sunstein is a Bloomberg Opinion columnist. Get the latest email updates about the coronavirus outbreak — it's FREE! National Views.

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