Recent trends in how federal district courts exercise their power of judicial review underscore the changing nature of regulatory litigation. These trends start with the rise in multidistrict litigation, as groups of plaintiffs file complaints in multiple district courts to maximize their chances of blocking a federal policy. For their part, courts considering these challenges are exercising their power by refusing to defer to the executive branch and authorizing discovery. Individuals and businesses impacted by federal regulation should take these trends into consideration as they devise litigation strategies. (In the second installment of this two-part series, we will discuss two additional trends—the rigorous enforcement of the Administrative Procedure Act's standard of review and the rise of nationwide injunctions.)

Multidistrict litigation is booming.

The days when only a single judge would review a federal policy seem to be over with the explosion of multidistrict litigation.

Today, the government routinely faces multiple lawsuits across the country—from San Francisco to New York—as groups of plaintiffs file multiple challenges to federal policies. As but one example, district courts in California, New York, Washington, D.C., and Maryland each reviewed the Trump Administration's rescission of the Obama Administration policy known as Deferred Action for Childhood Arrivals.

For plaintiffs, multidistrict litigation provides multiple bites at the apple, increasing the likelihood that a court will enjoin the federal policy. By contrast, multidistrict litigation forces the government to run the table. And when a court enjoins a federal policy, the government must often seek extraordinary remedies—including from the U.S. Supreme Court—to defend the policy.

Expect this trend of multidistrict litigation to continue because the government often cannot channel multiple challenges into a single court.

Discovery is becoming the new norm.

Although discovery used to be rare in regulatory litigation, discovery is now increasingly common in challenges to government policies.

In regulatory litigation, courts typically review the agency's decision based exclusively on a record compiled by the agency. But the Supreme Court has allowed lower courts to look beyond the administrative record if there is a "strong showing of bad faith or improper behavior."

Until now, district courts rarely invoked this exception to allow plaintiffs to obtain discovery of the executive branch. But today, discovery orders (and related orders to supplement the administrative record) are increasingly common in high-profile cases. In the DACA cases, for example, the government sought mandamus from the Supreme Court to block extraordinary discovery orders.

The most recent example of discovery came in the census litigation involving the addition of a citizenship question. In Department of Commerce v. New York, the district court allowed extensive discovery and ordered the secretary of commerce to be deposed. Although the Supreme Court blocked the deposition, the Court upheld the district court's use of extra-record evidence.

Discovery often forces the government to take extraordinary steps to block discovery orders that risk disclosing privileged information. And those extraordinary efforts often force appellate courts to prejudge the merits of the case. Unless the Supreme Court provides definitive guidance, district courts seem inclined to continue ordering discovery in regulatory litigation, and the government will continue to seek extraordinary relief.

Deference is on the decline.

Courts are less likely to defer to the executive branch in two ways. First, courts have not been receptive to the government's argument that certain decisions are committed to the executive branch's discretion—and thus not reviewable by courts. And second, courts have resisted deferring to executive branch policies on the merits.

There is a long tradition that certain decisions are committed to the executive branch and thus beyond review by courts. This tradition is reflected in the Administrative Procedure Act, which says that matters "committed to agency discretion by law" are not reviewable. The Supreme Court has held that certain types of decisions—like the exercise of enforcement discretion—cannot be reviewed.

Yet courts have been more likely to apply a presumption in favor of judicial review in challenges to Trump Administration policies. In Trump v. Hawaii, for example, the Supreme Court refused to accept the government's argument that the Court had no role to play in reviewing the president's proclamation. And in the census case, the Supreme Court rejected the government's argument that it could not review the decision to add a citizenship question. The DACA cases, which the Court agreed to hear this term, will again test the government's argument that matters of enforcement discretion are committed to the executive branch.

Just as courts are resisting nonreviewability arguments, courts are also resisting requests to defer to the executive branch on the merits. Doctrines of judicial deference to the merits of executive branch policymaking—Chevron deference to interpretations of statutory ambiguities and Auer deference to interpretations of regulatory ambiguities—have long been debated and now seem to rest on shaky legal footing.

The Supreme Court entered this debate in Kisor v. Wilkie. Although a divided court declined to overrule Auer deference, four justices would have done so. For his part, the Chief Justice wrote separately to emphasize Auer's limitations, and he signaled that the court's decision in Kisor had no bearing on issues surrounding Chevron deference.

Although the court has not considered the validity of that doctrine since City of Arlington v. FCC, the court has considered Chevron's underpinnings: Congress's delegation of lawmaking power to the executive branch through statutory silence and ambiguity.

Gundy v. United States was the Supreme Court's latest attempt to grapple with a broad delegation of lawmaking power to the executive branch. Although a plurality upheld the statute at issue, four justices (excluding Justice Kavanaugh, who did not participate) were willing to reconsider the nondelegation doctrine. Look for the Supreme Court to be called upon again soon to decide whether other laws are impermissible delegations of lawmaking power to the executive branch.

These recent trends have altered the course of regulatory litigation. Federal district courts are now exercising their power of judicial review by considering multiple challenges to executive branch policies, ordering discovery and avoiding deference. Each of these trends should be taken into account before engaging in regulatory litigation.

Donald F. McGahn II leads the government regulation practice at Jones Day. Before rejoining Jones Day in 2019, he served as counsel to the president of the United States. Brett A. Shumate is also a partner in the government regulation practice. Before joining Jones Day, he served in the U.S. Department of Justice as deputy assistant attorney general for the civil division's federal programs branch. This article represents the personal views and opinions of the authors and not necessarily those of the law firm with which they are associated.