Randolph Moss. Photo: Diego M. Radzinschi/NLJ

A federal judge appeared skeptical of the Justice Department’s arguments defending President Donald Trump’s executive order limiting new agency regulations during a hearing Thursday.

U.S. District Judge Randolph Moss said the order, which requires federal agencies to eliminate at least two regulations for each new one issued, essentially creates a “shadow process” for the regulatory scheme by putting extra requirements on rulemaking agencies. Still, Moss did not indicate whether he thought the process violated the law.

The lawsuit challenging the order, brought by Public Citizen, the Natural Resources Defense Council and the Communication Workers of America union, claims Trump exceeded his presidential authority when he issued the order in January. The hearing considered both plaintiffs’ motion for summary judgment and the government’s motion to dismiss the case. Moss did not indicate how, or when, he will decide.

Public Citizen general counsel Allison Zieve said neither the U.S. Constitution nor any statutes give the president authority to put such requirements on the agencies in the rulemaking process.

On the government side, Deputy Assistant Attorney General Brett Shumate said the president’s authority comes from Article II of the Constitution, and that other presidents have issued similar orders requiring agencies to consider certain factors during the process, such as a cost-benefit analysis. Moss said Trump’s was different because other similar orders existed “within the confines” of the regulation itself, while this order required agencies to consider factors “unrelated” to their regulatory missions.

Shumate also noted any rule an agency rescinds must be for a good reason, and that language in the order makes clear agencies can’t rescind rules that are mandated by a statute or court. White House guidance also says the order itself “should not serve as the basis or rationale, in whole or in part,” for rescinding a rule, and that agencies need to have a reason consistent with law to rescind rules.

Moss noted it was the first executive order he’d encountered that barred agencies from citing the order itself as a reason for adhering to it.

Still, Moss did not appear to endorse any of the plaintiffs’ arguments. Moss pushed Zieve on how the plaintiffs have standing since it’s unclear the government has withheld any rules due to an inability to comply with the order.

Though the groups claimed their members would be harmed if and when agencies withhold rules, Moss wasn’t “at all sure” members of the public could have standing under D.C. Circuit law if they’re only speculating that they could be affected.

Zieve replied that was not so in this case, because under Trump’s order, rules that must be offset are those that exceed $100 million in costs. She said it was inevitable agencies would need to repeal significant public protections to balance out the costs.