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Monday February 13, 2017

Two-for-One Executive Order Draws Lawsuit by Advocacy Groups

Four organizations February 8 sued the federal government in Washington, D.C. U.S. district court over the recent executive order that instructs federal agencies to eliminate two regulations for each new one passed. The complaint names the president and numerous agencies with jurisdiction over consumer, worker and environmental issues.


CPSC is not named as it had claimed exemption from the order as an independent agency (PSL, 2/6/17), but some of the targeted agencies do have consumer product jurisdiction such as the Environmental Protection Agency and National Highway Traffic Safety Administration. The four plaintiffs are Public Citizen, Natural Resources Defense Council, Communications Workers of America, and Earthjustice.


The complaint ( asserts, "To repeal two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs and without any consideration of benefits, is arbitrary, capricious, an abuse of discretion, and not in accordance with law, for at least three reasons." The groups explain:

  • There is a lack of federal law that authorizes agencies "to withhold a regulation intended to address identified harms to public safety, health, or other statutory objectives on the basis of an arbitrary upper limit on total costs."

  • The laws underlying the targeted regulations do not direct repeal. Instead, the agencies have deemed the rules to "advance the purposes of the underlying statues," including via the public comment process.

  • There is no law authorizing an agency "to base its actions on a decision making criterion of zero net cost across multiple regulations."

The complaint additionally says that compliance with the order would cause agencies to violate or fail to enforce laws they administer and that the Administrative Procedures Act (APA) would require new cost assessments to compare regulations, although those might have little in common.


The complaint lists five causes of action:

  • Violation of separation of powers: The desired actions are "impermissible and arbitrary under the governing statutes, [so] the Executive Order purports to amend the statutes through which Congress has delegated rulemaking authority to federal agencies," assert the plaintiffs.

  • Violation of the "Take Care" clause of the Constitution (Article II, Section 3): It demands that the president "shall take Care that the Laws be faithfully executed." The complaint cites case law that supports judicial action against presidential actions that undermine laws passed by Congress, and it asserts, "The President lacks the authority to direct federal officers or agencies to act in derogation of the statutes that delegate rulemaking authority to them."

  • Ultra vires review involving agency officials: The Latin phrase means "beyond the power," and the plaintiffs ask that the order thus be declared unlawful. They write that "Neither the statutes from which the agency defendants derive their rulemaking authority nor the APA authorizes these defendants to consider and take action based on the cost of a new rule in relation to the costs of existing standards for the purpose of offsetting costs as a condition of issuing a new standard in compliance with the [order]."

  • Ultra vires review involving the Office of Management and Budget (OMB): The complaint asserts, "The director of OMB may act only pursuant to authority lawfully delegated by Congress or the President." It continues, "Because the Executive Order violates the President’s authority under the Constitution and directs action contrary to law, implementation of the Executive Order by the director of OMB is arbitrary, capricious, an abuse of discretion, and contrary to law." OMB is a defendant.

  • Violation of the APA: The complaint cites this law's mandates that courts can overturn actions by agencies that are “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”