Public interest lawyers will try to convince a federal judge Thursday that they have standing to challenge a key component of President Donald Trump’s deregulatory agenda.
U.S. District Judge Randolph Moss in Washington, D.C., will hear arguments in the case, in which two public interest groups and a union allege Trump exceeded his constitutional authority when he issued the so-called “1-in-2-out” executive order on regulations in January. The groups, which include Public Citizen, the Natural Resources Defense Council and the Communication Workers of America, argue that Trump’s order puts requirements on federal agencies that are inconsistent with the U.S. Constitution and laws passed by Congress. Whether the groups have standing to bring such a claim, some lawyers and legal scholars said, could decide the lawsuit’s fate.
“At first blush, the idea that people could challenge a president’s instructions to agencies to eliminate regulations would seem so general and nonfinal that, at first, you would think that maybe it’s not timely for a challenge,” said William Buzbee, a professor at Georgetown University Law Center who studies administrative and constitutional law.
Though it received less media attention than other orders — such as those limiting travel from majority-Muslim countries or establishing a voter fraud commission — the Jan. 30 executive action was designed to deliver on a key promise from Trump’s presidential campaign: eliminate all wasteful and burdensome regulations. The directive requires that, for every one regulation an agency issues, it must rescind two regulations.
Like much of the litigation against Trump and his agenda, standing is key in this case. A Justice Department spokesman declined to comment, but in its briefs, DOJ argued that the groups do not have standing to bring the lawsuit because they could point to no single regulation an agency has withheld that harmed them. Standing has been an issue in lawsuits over Trump’s business holdings and his travel ban executive orders. Recently, several state attorneys general won standing to challenge a lawsuit against the Affordable Care Act, which the Trump administration is not expected to defend.
In this case, the plaintiff groups argue that they have standing because, among other reasons, the order’s effect on the regulatory process causes inevitable harm as agencies delay or withhold regulations to protect public health and safety.
“What’s really at stake in the case is public protections, is clean air and clean water and safe cars,” said Public Citizen General Counsel Allison Zieve, who will argue the case Thursday.
Helgi Walker, a partner at Gibson Dunn & Crutcher and co-chairwoman of the firm’s Administrative Law and Regulatory Practice Group, said the lawsuit is “wildly premature” because there hasn’t been any application of the executive order that has harmed Public Citizen or the other groups. If there were a final agency action to point to, Walker said, the case would be different. She declined to discuss the merits of the case, noting the claims were “borderline frivolous.”
“That’s like basic standing doctrine,” Walker said. “I think this suit is procedurally defective because it’s, at this point, incurably premature.”
On Thursday, the judge will consider both a motion to dismiss by the government and a motion for summary judgment by the plaintiff groups. Buzbee, the Georgetown law professor, said he expects Moss to consider all elements of the case. He added that while the issues of timing and standing are “certainly not inconsequential,” he thought there was a “pretty decent shot” the plaintiffs could show a real harm. That’s because, he said, it’s clear agencies would be following the president’s orders.
“Standing doctrine is very unpredictable, but because this is actually an instruction from the president to all agencies to definitely do their work differently, this is not an area where this is some question,” Buzbee said.
It’s unclear when Moss will make a decision in the case. Zieve said the judge could also decline to rule, and ask for more briefing on different issues. She said that should the group lose the case, there will almost certainly be an appeal.