Over the past several years, the conservative legal movement and corporate interests have enjoyed one administrative law victory after another. Admirers of the administrative state have watched in general dismay as regulators’ ability to protect the public health, the environment, and worker safety and organizing rights has dwindled. Despite their chagrin over these developments, progressives should not hesitate to wield the burgeoning anti-administrative toolkit against the incoming administration’s regulatory agenda.

Take, for example, the major questions doctrine (“MQD”). My organization, Governing for Impact, joins others who believe that doctrine is anti-democratic, ill-conceived and vague. Nonetheless, and as we argue in a just-published white paper, we believe opponents of the incoming administration should deploy the MQD wherever plausible. In part, that’s because, at least on its face, the MQD should prove an obstacle to many of the most extreme proposals in Project 2025 and other Trump 2.0 planning efforts. The MAGA iteration of the Republican Party somewhat uneasily marries traditional conservative deregulatory ambitions with a more muscular vision of presidential power in select issue areas. Many likely administration priorities in that latter bucket, including the mass firing of civil servants or deploying federal troops to conduct domestic law enforcement activities, involve the kinds of controversial, consequential and novel interpretations of old statutes that have merited MQD scrutiny in the past. 

Even cynics (like myself) who consider the MQD to primarily function as a versatile tool for conducting conservative policymaking from the bench should be able to get behind deploying the doctrine under Trump 2.0. It is highly unlikely that the very same conservative Supreme Court supermajority responsible for re-incarnating the MQD in West Virginia v. EPA (2021) will ever formally reverse itself. But challenging GOP policy priorities using the MQD may achieve the next-best thing by putting conservative jurists in a bind: either they invalidate harmful Trump 2.0 priorities—or they dismiss the MQD challenge, and in doing so narrow the doctrine or clarify its many outstanding questions. (E.g., what is the threshold for “economic significance”? Can agencies ever survive scrutiny at the “clear congressional authority” step?). Such precedent would benefit the next pro-regulatory administration that takes office. Put differently, the partisan logic of the current judicial environment may perversely require that, in order to curtail de-regulatory doctrines, we first wield them ourselves. 

Biden v. Nebraska, in which the Supreme Court invalidated the Biden administration’s first student debt relief proposal (which we defended on this blog), likewise offers misbegotten fruit to the would-be Trump opponent. In concluding that the state of Missouri had standing to pursue the case on behalf of its instrumentality, the loan servicer MOHELA, the Supreme Court opened an overlooked avenue that, in another recent paper, we encourage state attorneys general to pursue. MOHELA’s tenuous and relatively formalistic relationship to the state of Missouri suggests that states can sue on behalf of all manner of entities that enjoy fairly modest levels of state supervision, like state universities or hospitals. 

This development could help solve an important problem from the first Trump administration: finding plaintiffs affected by adverse regulatory developments who are willing to sue. Many repeat players (like university systems and hospitals) are among the best positioned to challenge a wide range of harmful regulations, and yet can be reluctant to challenge even obvious (de)regulatory excesses in court lest they jeopardize funding from or relationships with other parts of the federal government. (An especially salient concern under an administration that revels in retributive politics.) But that small-p political problem can be circumvented when state AGs sue on the instrumentality’s behalf (as, indeed, happened in the student loan case). Biden v. Nebraska’s expanded vision for state-instrumentality standing may also prove important given concerning developments in the law of organizational standing, which could impede public interest organizations from playing the same resistance role they took on during the first Trump administration.

Ultimately, resuscitating the administrative state will require legislative action and a shift in the Supreme Court’s composition. For now, the best we can do is work to preserve the substantive protections that the administrative state exists to provide—for the next four years, that project will entail thwarting the new administration’s regulatory agenda where possible, and otherwise slowing it down. (That’s why we also would encourage state, city and public interest litigants to intervene in pending challenges to Biden administration rules—doing so will force new agency leaders to take a longer route toward deregulation). Progressives should not forgo deploying even distasteful precedents to do so.

Will Dobbs-Allsopp is the Policy Director at Governing for Impact.