New Amicus Supports Challenge to Trump's 'Two-for-One' Order

by James Goodwin

May 25, 2017

Yesterday, ten distinguished law professors, all of them CPR Member Scholars writing in their individual capacities, filed an amicus brief in support of a lawsuit brought by Public Citizen, the Natural Resources Defense Council (NRDC), and the Communication Workers of America challenging as illegal and unconstitutional the Trump administration’s Executive Order 13771. The order requires agencies to identify at least two existing rules to repeal for every new one they seek to issue and to ensure that the money companies would save by not having to comply with the two health, safety, environmental, or other regulations would fully offset the compliance costs associated with the new rule.

The goal of the amicus brief is to further elucidate the “fundamental principles of administrative law and policy” that undergird the legal arguments raised in the lawsuit. To do this, it traces in painstaking detail the history of U.S. administrative law in general, and of regulations in particular, back to the founding. Along the way, the brief demonstrates that the pursuit of the public good has always served as the animating force behind administrative law. In recent decades, Congress has carried on this tradition by enacting such landmark legislation as the Clean Water Act and the Consumer Product Safety Act, and directed federal agencies to enforce their provisions through the issuance of specific regulations, the purpose of which are to deliver concrete public benefits.

According to the brief, Executive Order 13771 and supporting guidance are directly at odds with the fundamental principles and policy considerations that have been at the heart of our system of administrative law and regulatory system for more than two centuries. This drastic departure from established practices and norms only further underscores the degree to which the order contravenes applicable statutory and constitutional requirements.

The lead authors of the brief are Joseph Tomain and Amy Sinden. They’re joined by co-signers Victor Flatt, Alyson Flournoy, Robert Glicksman, ...

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