Standing Arguments in Litigation Challenging Trump’s Regulatory “Two-for-One” EO (Part 1)

by Bridget C.E. Dooling — Tuesday, Sept. 25, 2018@BridgetDooling

In my last post on this topic, I offered a brief summary of the litigation in the U.S. District Court for the District of Columbia challenging President Trump’s regulatory “two-for-one” executive order, EO 13771. In short, the case was initially dismissed for lack of standing, the plaintiffs amended their complaint, the government responded, and we await a decision from Judge Randolph D. Moss. In the meantime, I’m offering a few posts on the standing arguments of this case: associational standing and organizational standing.

First up: associational standing. This refers to the ability of an association, like a public interest group or a trade association, to sue on behalf of its members. In Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977), the Supreme Court established the test for associational standing: determine whether (1) the plaintiff has a member that could sue in his or her own right, (2) the interest the association seeks to protect is “germane” to its purpose, and (3) the claim or the requested relief require the member (or members) to participate in the suit. It’s the first prong on this test that trips up the plaintiffs in this case, according to Judge Moss’ initial memorandum opinion and order:

[Plaintiffs] seek to establish “associational standing” by identifying an array of regulatory actions that, they contend, the Executive Order will likely delay or preclude and by arguing that their members will suffer harm as a result. But, as to some of those regulatory actions, they fail to identify particular members who will be harmed. As to others, they fail to allege facts sufficient to show that the relevant agency would have issued the rule absent the Executive Order. And, as to yet others, they fail plausibly to allege or otherwise to show that any delay of the regulatory action attributable to the Executive Order will substantially increase the risk that any of their members will be harmed or that any of their members will face a substantial probability of harm once such an increase in risk is taken into account.

Public Citizen, Inc. et al v. Trump, Civ. Action No. 17-253, slip. op. at 2 (emphasis in original).

The opinion notes that the plaintiffs alleged that eight specific rules, as well as other general categories of rules, were delayed by EO 13771. It goes through a painstaking review of each of the rules that the plaintiffs argue is delayed, spending 32 pages of a 52-page opinion assessing plaintiffs’ claims with respect to each one.

Along the way, the opinion makes several points that could be useful to folks in the future, particularly on the issues of how a plaintiff could potentially establish that (1) the government intended to issue a rule, and (2) EO 13771 caused a delay. I’ll pick up there in my next post.

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