Court Grapples With Trump’s One-In, Two-Out Executive Order

WASHINGTON (CN) - Taking a stand against the executive order that requires federal agencies to repeal two old regulations for every new one implemented, an attorney told a federal judge Thursday that President Donald Trump’s exercise of executive authority here is “unprecedented.”

"This executive order is extraordinary," said Allison Zieve, whose group Public Citizen brought a lawsuit to block implementation of the Jan. 30 directive.

Arguing that Congress holds the sole authority to determine how agencies should issue regulations, Zieve said there is no law that gives the president the authority to make agencies weigh the costs of unrelated regulations when considering new ones.

Public Citizen filed its February challenge to the executive order with the Natural Resource Defense Council and Communications Workers of America AFL-CIO. They moved for summary judgment in May.

Presiding over Thursday’s 2.5-hour hearing was U.S. District Judge Randolph Moss, an appointee of President Barack Obama.

Moss questioned Zieve at length about whether her group has standing since President Donald Trump’s executive order explicitly states that agencies cannot violate existing laws to meeting any of the order's objectives.

Zieve argued that the group has been left in a "totally untenable position” because the order chills its ability to petition federal agencies on rulemaking.

If it pushes agencies to adopt new regulations, that would trigger the need for them to repeal existing regulations, many of which Zieve said would be important to Public Citizen and its members.

Zieve declined to identify specific regulations that could be repealed, however, saying agencies have not made that information public yet. The government later pointed to these factors as indications that the court challenge is premature, but Zieve called it a "commonsense conclusion."

"In a practical matter, there's no other way for the rule, for the executive order to work," Zieve said.

The executive order, Public Citizen argued in a brief, "will block, weaken, or delay" health, safety and environmental regulations.

If the group chooses not to advocate for new regulations, Zieve said this too would harm its members because the group's work revolves around advocating for public health and safety measures.

Moss emphasized that the challenge presents two starkly different world views: with one set arguing that existing regulations make a lot of sense and save lives, and the other arguing that burdensome and unnecessary regulations impede economic growth and job development.

For now, Moss said, the issue of standing will determine whether the case advances.

In a motion to dismiss, the Justice Department cast the constitutional questions as premature since no agency has taken any concrete steps to actually injure Public Citizens or its members.

"Absent such concrete action, Plaintiffs can only speculate about the effect (if any) on them from the Executive Order and its implementing guidance," the motion states.

Justice Department attorney Brett Shumate argued Thursday that any chill Public Citizen feels has been self-imposed: The executive order does not say the group can't bring rulemaking petitions to federal agencies, so the group is chilling its own activities.

Shumate took the position that the president is well within his Article II powers to oversee regulatory reform via executive order, which he said presidents have been doing for decades.

But Judge Moss said this executive order is different. Not only does it require agencies to consider "utterly unrelated" actions when contemplating new rules, he said it’s the first one he’s seen that stipulates agencies can't mention it in the rulemaking process.

Shumate called this point extraneous, saying Public Citizen has failed to show the executive order is unlawful.

Though Moss said later in the hearing that the executive order speaks to "a shadow regulatory process," Shumate said presidents have for years been adding regulatory frameworks on top of already existing ones.

Moss wanted to know what would happen if an agency head can't find any regulations "ripe for the picking" to be repealed.

Shumate said the executive order was written with flexibility in mind, saying it would be enough for agencies to go to the Office of Management and Budget, and say, “we tried our best.”

Moss reserved ruling. 

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