This Issue Brief outlines how litigants might challenge the Trump administration’s potential
non-enforcement efforts. It first explains why two cases often thought to make nonenforcement challenges more difficult—Heckler v. Chaney and United States v. Texas—in
fact leave substantial room to challenge categorical non-enforcement directives. It then
walks through how litigants might frame such challenges, focusing on how litigants might
identify a challengeable action, how they might demonstrate standing, what legal claims
they might assert, and which remedies they might be able to seek. Finally, it identifies how
litigants might challenge other types of decisions related to non-enforcement, including
efforts to delay federal rules, refusals to engage in rulemaking, and failures to take
statutorily required actions.
