The Public Citizen Litigation Group, the National Resources Defense Council, and the Communications Workers of America affiliated with the AFL-CIO (collectively, the “Plaintiffs”) filed a Complaint with the District Court for the District of Columbia arguing that President Donald J. Trump’s “Executive Order on Reducing Regulation and Controlling Regulatory Costs” exceeds the President’s constitutional authority, violates the “take-care” clause of the Constitution, and directs agencies to engage in arbitrary and capricious actions. The Executive Order requires that certain executive agencies rescind at least two regulations in order to issue a new regulation (see previous Cabinet coverage here).
The Complaint claims, among other things, that the Executive Order:
- “directs agencies to disregard the benefits of new and existing rules,” which will “force agencies to take regulatory actions that harm the people of this nation”;
- “forces agencies to repeal regulations that they have already determined, through notice-and-comment rulemaking, advance the purposes of the underlying statutes, and forces the agencies to do so for the sole purpose of eliminating costs that the underlying statutes do not direct be eliminated”;
- forces agencies to violate “the statutes from which the agencies derive their rulemaking authority and the Administrative Procedure Act” (“APA”); and
- will slow the implementation of governing statutes “to a halt,” due to the new cost assessment requirements of any newly proposed or final rule and at least two existing rules, “although the new rule and the existing rules need not have any substantive relationship to one another and, with approval from OMB, need not even be issued by the same agency.”
Lofchie Comment: The intended point of the Executive Order – that regulators should (i) consider whether the sheer volume of regulations is killing economic growth and (ii) evaluate past rulemakings periodically to consider whether they still (or ever) made sense – is completely reasonable, but the effect is another matter. However sound-bite-worthy the notion of a 2-to-1 rule might be, that is all it should have been: a sound bite. Putting that notion into the actual language of the order made for a needless distraction from the order’s substance.