On August 10, 2017, Public Citizen, the Natural Resources Defense Council, and the Communications Workers of America, and Earthjustice appeared before Judge Randolph Moss of the United States District Court for the District of Columbia, seeking to overturn President Trump’s mandate that each new regulation must be counteracted by repeal of two similar regulations.

President Trump’s January 30, 2017 mandate generally requires administrative agencies to propose two regulations to be cut for each new one to be implemented, with cost being the primary consideration. As part of this ongoing duty, the agencies must, at the minimum, offset the cost of new regulations through the proposed cuts. Agencies must also submit recommended cuts to the White House for review and approval. Environmental groups immediately opposed the mandate, fearing that it would chill implementation of new, more protective regulations and remove preexisting protections.

In their motion for summary judgment, the Plaintiffs allege that President Trump’s January 30, 2017 mandate improperly blocks, weakens, or delays otherwise duly-authorized regulations that are designed to protect health, safety, and the environment. Such a result violates the U.S. Constitution’s “take care clause” by resulting in federal agencies taking actions that harm citizens. Also, Plaintiffs argue that even if agencies were legally authorized to implement the mandate, doing so would result in improper and arbitrary cuts to regulations solely for cost considerations. The Plaintiffs also claim that the mandate exceeds the President’s authority in that the President does not have inherent, exclusive authority to “direct rulemaking contrary to congressional commands.”

In opposition, the federal government asserted that any repealed rules would still be subject to scrutiny under the Administrative Procedure Act, and that the President has expansive authority over the administrative agencies and the rulemaking process. The cost consideration element of the mandate also ensures that any repealed regulations have low benefits but high comparative cost, resulting in a net benefit.

Judge Moss has taken the matter under consideration and a ruling is expected in the coming weeks.