Update: Litigation Challenging Trump’s Regulatory “Two-for-One” EO

by Bridget C.E. Dooling — Tuesday, Sept. 4, 2018@BridgetDooling

You might recall that nine days after President Trump issued Executive Order 13,771, a set of influential interest groups filed a lawsuit in the U.S. District Court for the District of Columbia. That challenge, filed by Public Citizen, Inc., Natural Resources Defense Council, Inc., and Communications Workers of America, AFL-CIO on February 8, 2017, is still before the court on the issue of standing. Perhaps we’ll see a decision this fall. While we wait, and while 1Ls across the land learn what “procedural posture” means, let’s regroup on this case.

Executive Order 13,771 is the regulatory “two-for-one” order. It requires agencies to eliminate two regulations for every new one issued. It also creates a cost cap on new regulations, setting it at $0 for FY 2017 and directing the Office of Management and Budget to set agency-specific cost allowances going forward. Both were novel approaches in the U.S. The plaintiffs’ initial complaint alleged that this executive order was unlawful on several grounds.

Shortly after Public Citizen v. Trump was filed, Brian Mannix penned a Law and Liberty blog post on the suit’s uphill climb on standing and ripeness issues. Later that spring in May 2017, Chris Walker provided a round-up on this fine blog of where things stood with the case. That was shortly after the government filed its motion to dismiss and the plaintiffs filed their motion for summary judgment. Over the course of that summer, the parties filed their reply briefs and appeared before Judge Randolph D. Moss for oral arguments on August 23, 2017.

Judge Moss issued his memorandum opinion and order on February 26, 2018. The opinion walks through the plaintiffs’ two arguments for standing, both associational and organizational, finding them lacking and therefore dismissing the case. On April 2, the plaintiffs filed a motion for leave to amend their complaint in light of the opinion, which the government did not oppose. That second amended complaint was filed later in April, the government filed a motion to dismiss that second amended complaint in May, and plaintiffs filed a memorandum in opposition to that motion to dismiss in June. You are now up to speed.

While we bide our time, I’ll take a deeper dive into a few aspects of this case. In future posts I’ll take a closer look at the standing arguments, amici, and a couple of parties that are attempting to intervene. I’ll be curious to know what you think, as well.

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