Tuesday, February 14, 2017

No. 204: President Donald Trump's Outrageous Two-for-One Executive Order Faces a Powerful Legal Attack

On February 8, 2017, Public Citizen and two other plaintiffs filed a powerful lawsuit against President Donald Trump, the United States of America, and many other defendants. The plaintiffs seek to prevent implementation of an outrageous presidential executive order directing federal agencies to rescind two regulations for every new regulation proposed or issued. The case was assigned to Senior U.S. District Judge Gladys Kessler, a 1994 President Clinton nominee who took senior status in 2007. (See Public Citizen v. Trump, U.S. District Court, District of Columbia, Case No. 1:17-cv-253.)

Public Citizen is a national, nonprofit consumer advocacy organization with more than 400,000 members and supporters nationwide. It engages in research, advocacy, media activity, and litigation related to advancing health and safety, consumer protection, and the environment, among other things.

Natural Resources Defense Council is another plaintiff. It is a nonprofit environmental and public health organization with hundreds of thousands of members nationwide.

Communications Workers of America, part of the AFL-CIO, is another plaintiff. It is a labor union representing 700,000 workers in the telecommunications, media, manufacturing, airline, and health care industries and in a wide variety of public sector positions in the U.S., Canada, and Puerto Rico.

President Trump and the U.S.A. are defendants. The other defendants are top officials of the Office of Management and Budget (OMB), the Department of Energy, the Department of Transportation, the National Highway Traffic Safety Administration, the Department of Labor, the Department of the Interior, the Federal Motor Carrier Safety Administration, the Fish and Wildlife Service, the Environmental Protection Agency, the Pipeline and Hazardous Materials Safety Administration, the National Marine Fisheries Service, the Mine Safety and Health Administration, and the Federal Railroad Administration.

The Complaint
Four paragraphs in the ten-paragraph introductory section of the complaint summarize the case. They read:
1. This action seeks declaratory and injunctive relief with respect to an Executive Order on "Reducing Regulation and Controlling Regulatory Costs" issued by President Donald Trump on January 30, 2017, and Interim Guidance issued by the Office of Management and Budget (OMB) on February 2, 2017, regarding implementation of the Executive Order. The Executive Order exceeds President Trump's constitutional authority, violates his duty under the Take Care Clause of the Constitution, and directs federal agencies to engage in unlawful actions that will harm countless Americans, including plaintiffs' members.
2. The January 30, 2017, Executive Order states, among other things, that an agency may issue a new regulation only if it rescinds at least two existing regulations in order to offset the costs of the new regulation. It directs agencies, among other things, (1) to identify at least two existing regulations to repeal for every new regulation proposed or issued, and (2) to promulgate regulations during fiscal year 2017 that, together with repealed regulations, have combined incremental costs of $0 or less, regardless of the benefits. The total incremental cost limit for future fiscal years is to be identified later by the Director of OMB.
3. The Executive Order will block or force the repeal of regulations needed to protect health, safety, and the environment, across a broad range of topics—from automobile safety, to occupational health, to air pollution, to endangered species.
10. The Executive Order is unlawful on its face. Implementation and enforcement of the Executive Order should be enjoined.
Illustrations in the Complaint
The complaint illustrates the kinds of regulations the executive order encompasses, but they are only a few examples of the regulations to be affected. The complaint identifies regulations issued pursuant to several statutes: the Motor Vehicle Safety Act, the Motor Carrier Safety Act, the Occupational Safety and Health Act, the Mine Safety and Health Act, the Toxic Substance Control Act, the Hazardous Materials Transportation Act, the Federal Railroad Safety Act, the Federal Water Pollution Control Act, the Energy Policy and Conservation Act, the Endangered Species Act, and the Clean Air Act.

Causes of Action
The complaint contains five causes of action. They are: (1) the executive order violates the separation of powers, (2) the executive order violates the Constitution's Take Care Clause, (3) because the executive order directs agencies to violate the law, the executive order is of no force and effect, (4) because the executive order directs agencies to violate the law, the OMB interim guidance implementing the executive order and the executive order are of no force and effect, and (5) because the executive order directs unlawful action, its implementation by the director of the OMB will cause other federal agencies to violate the Administrative Procedure Act and is of no force and effect.

The plaintiffs ask the court to do five things. They are: (1) declare that the executive order violates the Constitution's Take Care Clause, exceeds presidential authority under the Constitution's Article II, infringes on legislative authority, and is invalid; (2) declare that the defendants cannot lawfully implement or comply with sections 2, 3(a), and 3(d) of the executive order; (3) declare unlawful and set aside the OMB interim guidance; (4) enjoin the agency defendants, including the director of the OMB, from complying with the executive order; and (5) grant such other relief as the court may deem just and proper.

General Observations
I think Public Citizen's complaint against President Trump is a powerful legal attack against an outrageous two-for-one executive order. Because the executive order focuses on regulatory costs and says nothing about regulatory benefits, I think issuance of the executive order is an act of treachery that is contrary to the health and welfare of humanity.

Public Citizen's complaint has not yet received the broad publicity it deserves, in contrast to the massive public attention to the outrageous executive order relating to immigrants and refugees. It will be important to watch the progress of Public Citizen v. Trump.

Disclosure Note
Public Citizen Litigation Group (PCLG), a unit of Public Citizen, played a major role in drafting the complaint discussed here. PCLG has represented me on several occasions, most notably in my successful lawsuit against the North Carolina Department of Insurance. The Department had sought to ban distribution in North Carolina of the April 1981 issue of The Insurance Forum. That four-page issue was devoted in its entirety to the first of my many articles about the A. L. Williams organization.

Available Material
I am offering a complimentary 61-page PDF consisting of Public Citizen's complaint (49 pages), the two-for-one executive order (4 pages), and OMB's interim guidance (8 pages). Email jmbelth@gmail.com and ask for the February 2017 package relating to Public Citizen v. Trump.