Fourteen Republican attorneys general have lent their support to the Trump Administration’s regulatory rollbacks.
Specifically, in an amicus brief filed this week, they are backing President Donald J. Trump’s recent “one in, two out” Executive Order, the subject of a lawsuit in the U.S. District Court for the District of Columbia.
States represented include West Virginia, Wisconsin, Alabama, Arizona, Arkansas, Georgia, Kansas, Louisiana, Michigan, Nevada, Oklahoma, South Carolina, Texas and Wyoming.
In February, a coalition of consumer, environmental and worker advocacy groups have sued the Trump Administration to block an Executive Order that directs federal agencies to repeal two federal regulations for every new rule they issue.
The plaintiffs—Public Citizen, Natural Resources Defense Council, and the Communications Workers of America —are asking the court to issue a declaration that the order cannot be lawfully implemented and bar federal agencies from implementing the order.
“For fiscal year 2017, which is in progress, the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget,” the Executive Order, signed by President Donald J. Trump on Jan. 30, says.
The Executive Order covers all new “significant” rules or guidance documents issued by executive agencies. “Significant” is generally defined as an impact on the economy of $100 million or a matter otherwise of major national importance. The order does not cover rules from independent agencies which do not answer to the President) including the Federal Communications Commission, the Federal Trade Commission, the Securities and Exchange Commission, and the Consumer Financial Protection Bureau. Those agencies, however, were urged to follow the new standards.
The lawsuit names as defendants the President, the acting OMB director, and the current or acting secretaries and directors of more than a dozen executive departments and agencies. The complaint alleges that the agencies cannot lawfully comply with the order because doing so would violate the statutes under which the agencies operate and the Administrative Procedure Act.
"No one thinking sensibly about how to set rules for health, safety, the environment, and the economy would ever adopt the Trump Executive Order approach, unless their only goal was to confer enormous benefits on big business,” Public Citizen President Robert Weissman said in a statement. “If implemented, the order would result in lasting damage to our government’s ability to save lives, protect our environment, police Wall Street, keep consumers safe and fight discrimination. By irrationally directing agencies to consider costs but not benefits of new rules, it would fundamentally change our government’s role from one of protecting the public to protecting corporate profits.”
The Executive Order “usurps congressional power and violates constitutional separation of powers principles” plaintiffs say of the legal rationale for the lawsuit. It also violates the Take Care Clause in Article II of The Constitution, which directs the President to take care that the laws be faithfully executed.
Agencies cannot implement the order “without violating the statutes from which they derive their rulemaking authority and the Administrative Procedure Act, which prohibits regulation that is arbitrary or in violation of the law,” the plaintiffs add.
In a brief filed on April 17, the attorneys general wrote that they have “a significant interest in executive actions that lessen regulatory burdens on the states and their citizens.”
“Over the last several years, the administrative state has accelerated further the long-term growth of new regulatory burdens, while rarely eliminating unnecessary regulations issued in the past,” they wrote. “The result is a situation where agencies have implemented far more regulatory burdens than Congress ever envisioned. This unlawfully-imposed burden has been largely borne by the states and their citizens.”
The one in, two out rule, “is based upon a reasonable, easy-to-administer principle, which will help limit the cumulative costs of these ever- growing regulations,” they added.
Among the AG’s arguments is that the President has inherent authority to conduct a centralized review of administrative rulemaking.
“The President’s duty to take care that the laws enacted by Congress are faithfully executed carries with it the authority to direct the agencies to adopt certain policies or regulatory priorities when carrying out their work,” they wrote. “Because the President’s subordinates ultimately serve at his or her pleasure, it follows that the President may direct their actions or set the agenda for their department or agencies.”
“The President has inherent authority and significant discretion under the U.S. Constitution to set a regulatory agenda across the various departments and agencies that the President directly oversees,” they added. “And the President may consider factors such as cost, economic policy, and the availability of market-based alternatives when setting that regulatory agenda, so long as those considerations are not prohibited by congressional actions.”
The Executive Order “fits squarely within the tradition of orders enacted by prior administrations and shares numerous features in common with those past orders.” The order “requires agencies to take a cumulative approach to considering the costs of their regulations,” the AGs wrote. “Plaintiffs claim that it is somehow unusual or unlawful for Presidents to consider the cumulative effect of regulations or to adopt a cross-agency approach to regulation. But Presidents have been taking this cumulative approach for decades.”