District Court Dismisses Challenge to Trump's 2-for-1 Regulation Order, Maybe

Steven D. Schwinn, John Marshall Law School

Judge Randolph D. Moss (D.D.C.) today (almost) dismissed the challenge to President Trump's executive order that requires agencies to repeal two regulations for every new one they adopt. Judge Moss ruled that the plaintiffs lacked standing . . . for now, at least.

Recall that Public Citizen and others sued President Trump, arguing that the EO violated the separation of powers, the Take Care Clause, and the Administrative Procedure Act. The government moved to dismiss for lack of standing. Today the court agreed.

The court ruled that the plaintiffs lacked associational standing, because they failed to identify particular members who would be harmed, to plead facts sufficient to show that the relevant agency would've issued a new rule even without the EO, and to allege that any delay of the regulatory action attributable to the EO would substantially increase the risk of harm to their members. The court also ruled that they lacked organizational standing, because "[t]he burden of merely considering [the cost of the EO], however, is insufficient to establish organizational standing."

But the court stopped short of entering a final judgment. Instead, Judge Moss set a March 1 hearing where the parties and the court can determine what to do next, including, possibly, dismissing the complaint with leave to file a new one.