« Back “TwoFer” Executive Order Challenged in Court

May 24, 2017

On Feb. 4, we wrote to inform you of the president’s Jan. 31 Executive Order 13771 that, among other things, required the repeal of two administrative rules for every new rule promulgated by a federal agency. On Feb. 8, Public Citizen Inc., the Natural Resources Defense Council and the Communication Workers of America, AFL-CIO brought suit in the U.S. District Court for the District of Columbia to strike the executive order as being unconstitutional. A copy of the complaint is here.

The NRDC and other plaintiffs claim that the executive order violates the Constitution’s requirement that the president “take care that the Laws be faithfully executed” (Art. II, § 3) because he is directing federal agencies to take action that will bring harm to Americans. In addition, the plaintiffs claim that the president’s executive order is unconstitutional because it violates the separation of powers in Articles I and II. Finally, the plaintiffs assert that there is no federal law authorizing the president to issue such an executive order requiring agencies to “zero out” costs of regulations.

Fourteen states support the president’s executive order: Alabama, Arizona, Arkansas, Georgia, Kansas, Louisiana, Michigan, Nevada, Oklahoma, South Carolina, Texas, West Virginia, Wisconsin and Wyoming.

On May 15, the plaintiffs moved for summary judgment. That motion is attached here. Briefing on the plaintiffs’ motion will occur over the next one to two months unless an expedited schedule is adopted by the court.

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