NGOs Challenge Trump’s “One In, Two Out” Executive Order

On February 8, 2016, the Natural Resources Defense Council and other groups filed suit in the U.S. District Court for the District of Columbia challenging President Trump’s Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs.” The Executive Order provides that “for every one new regulation issued, at least two prior regulations [must] be identified for elimination” and sets a combined incremental cost cap of $0 on all new regulations to be finalized, and existing regulations to be repealed, in fiscal year 2017.

The complaint alleges that President Trump exceeded his constitutional authority in issuing the Executive Order by effectively unilaterally amending federal statutes to require agencies to take or withhold regulatory action based on factors not set forth in the governing statutes. The plaintiffs further claim that President Trump violated the Take Care clause in Article II, § 3 of the Constitution, which requires the President to “take Care that the Laws be faithfully executed.” The lawsuit also alleges that the Executive Order violates the Administrative Procedure Act and requires federal agencies and the Director of the White House Office of Management and Budget to violate the statutes from which they derive their authority. The plaintiffs request that the court declare the Executive Order invalid and enjoin federal agencies from complying with it.

President Trump is expected to vigorously defend the lawsuit. White House Press Secretary Sean Spicer stated that the suit is “just subjective at best and doesn't have any basis in fact.” The Executive Order remains in effect during the pendency of the lawsuit, as the court has not stayed the Executive Order to date.