Two-for-one Executive Order

Within ten days of his inauguration, President Donald Trump signed Executive Order 13771, "Reducing Regulation and Controlling Regulatory Costs," which requires federal agencies to repeal two regulations for each new regulation issued.

A coalition of nonprofit organizations filed a lawsuit challenging the executive order shortly thereafter, seeking declaratory and injunctive relief based on constitutional and Administrative Procedure Act (APA) grounds. In May 2018, California Attorney General Xavier Becerra and Oregon Attorney General Ellen Rosenblum moved to intervene in the lawsuit. The motion seeks to strike down the executive order because it violates the constitutionally protected separation of powers (by seeking to authorize the Executive Branch to nullify congressionally-authorized regulatory activity), while also being non-compliant with the APA. Later, in April 2019, California Attorney General Becerra and the attorneys general of Oregon and Minnesota filed a separate lawsuit challenging the two-for-one executive order.

The lawsuit noted that the “two-for-one” executive order violates the Constitution’s separation of powers doctrine by directing agencies to take actions that run afoul of congressionally-enacted statutes in requiring agencies to repeal two congressionally-authorized rules for every new congressionally-authorized rule that agencies issue – regardless of the agencies’ independent statutory obligations to implement Congressional directives. The attorneys general also pled that the executive order violates the APA’s arbitrary and capricious standard because it requires an agency in issuing a new rule to consider factors Congress did not intend for it to consider and that have no nexus to the substantive merit of the proposed rule.

The attorneys general demonstrated their standing to sue based on the executive order’s inappropriate influence on timely implementation of important public health, safety and environmental regulations, causing harm to the health and well-being of their states’ citizens, natural resources, and infrastructure. 

In December 2019, a federal district court in the District of Columbia dismissed the nonprofit-led lawsuit challenging the two-for-one executive order, finding that the nonprofit organizations lacked standing to pursue their claim. In April 2020, the court dismissed the attorneys general suit for lack of standing.