Citizen groups sue Trump over unconstitutional “one-in-two-out” order

February 8, 2017

lawsuit, regulations, Trump


In the immortal words of Twilight Zone’s Rod Serling, “Imagine if you will” a country in which for every law created for your protection two other laws must go away. What if in order to maintain laws against murder, the government decreed assault and rape would be deemed legal?

Something eerily similar and nightmarish occurred last week with the signing of an executive order that dictates for every new rule, standard, or regulation a federal agency puts in place to protect our families, workers, communities and environment from harm, at least two existing measures must be scrapped, regardless of the benefits they provide. The executive order, aka the “one-in-two-out” order, is based on an arbitrary “add one, cut two” approach that requires new rules have a net cost of $0 in 2017, as determined by the White House’s Office of Management and Budget (OMB). However the OMB evaluation would not take into account a regulation’s benefits to job creation, environmental services, or public health, safety and prosperity. It’s all about saddling ordinary citizens with rising healthcare expenses, financial fraud, and public safety while cutting costs for corporations.

In response Public Citizen, the Natural Resources Defense Council (NRDC) and the Communications Workers of America sued the Trump administration today to block the January 30th executive order. The plaintiffs are asking the court to issue a declaration that the order cannot be lawfully implemented and bar the agencies from implementing the order.

The suit, filed in the U.S. District Court for the District of Columbia, names as defendants the president, and Mark Sandy, acting director of the OMB, plus the current or acting secretaries and directors of more than a dozen executive departments and agencies. The complaint alleges that the agencies cannot lawfully comply with the president’s order because doing so would violate the statutes under which the agencies operate and the Administrative Procedure Act.

According to NRDC president Rhea Shuh, the executive order represents the President’s overstepping his authority under the Constitution, because he is rewriting laws by personal fiat rather than through a constitutional process.

“President Trump’s order would deny Americans the basic protections they rightly expect,” said Shuh. “New efforts to stop pollution don’t automatically make old ones unnecessary. When you make policy by tweet, it yields irrational rules. This order imposes a false choice between clean air, clean water, safe food and other environmental safeguards.”

In a blog post today Shuh says the order is unconstitutional and “would put Americans at greater risk in our homes, on the job, and at school by freezing or delaying new rules to protect us from emerging threats and by subjecting existing protections to repeal.”

Public Citizen President Robert Weissman said, “No one thinking sensibly about how to set rules for health, safety, the environment and the economy would ever adopt the Trump Executive Order approach — unless their only goal was to confer enormous benefits on big business. If implemented, the order would result in lasting damage to our government’s ability to save lives, protect our environment, police Wall Street, keep consumers safe and fight discrimination. By irrationally directing agencies to consider costs but not benefits of new rules, it would fundamentally change our government’s role from one of protecting the public to protecting corporate profits.”

Trump’s grandiose plan to repeal 75 percent of all federal regulations is preposterous on its face considering that there are more than 178,000 pages of rules in the Code of Federal Regulations, most of which are based on laws passed by Congress.

The plaintiffs in the lawsuit are represented by lawyers at Public Citizen Litigation Group, NRDC, CWA and Earthjustice.

Earthjustice attorney Patti Goldman said, “When presidents overreach, it is up to the courts to remind them no one is above the law and hold them to the U.S. Constitution. This is one of those times.”

A draft 2016 report to Congress from the White House OMB estimates that the annual benefits from all major regulations over the past 10 years for which agencies monetized both benefits and costs were between $269 billion and $872 billion, while the costs were between $74 billion and $110 billion, in 2014 dollars. OMB’s 2005 report to Congress estimated that major rules from the previous 10 years provided annual benefits of $69.6 billion to $276.8 billion, while costing between $34.8 billion and $39.4 billion.

CWA President Chris Shelton said, “It is unbelievable that the Trump administration is demanding that workers trade off one set of job health and safety protections in order to get protection from another equally dangerous condition. This order means that the asbestos workplace standard, for example, could be discarded in order to adopt safeguards for nurses from infectious diseases in their workplaces. This violates the mission of the Occupational Safety and Health Administration to protect workers’ safety and health. It also violates common sense.”

Read questions and answers about the case.

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