A lawsuit challenging the Trump administration's order that agencies eliminate two existing regulations for each new one will go forward despite the U.S. Justice Department's effort to end it quickly on procedural grounds.

U.S. District Judge Randolph Moss in Washington on Tuesday denied the government's request that he freeze the action on the plaintiffs' motion for summary judgment in Public Citizen v. Trump.

The Justice Department had urged Moss to rule first on the government's motion to dismiss the case on the ground that the challengers, who include labor and environment advocates, don't have standing to bring a case in the first place and that their claims are premature.


Judge Randolph Moss


Photo: Diego M. Radzinschi/ALM

Moss, at a hearing Tuesday, refused to halt the case. He set a briefing schedule on the motion for summary judgment and the motion to dismiss that will end on or before July 21.

The requirements of the Administrative Procedure Act and various federal statutes could impose hurdles to the Trump administration's goal of repealing or revising the prior administration's major regulatory initiatives. Still, federal appellate courts have held in abeyance litigation involving some of those initiatives at the request of the new administration. The U.S. Court of Appeals for the D.C. Circuit has stalled, for 60 days, proceedings over the Obama-era Clean Power Plan.

Tuesday's order from Moss comes on the heels of another regulatory setback for the administration. Labor Secretary Alexander Acosta on Monday said the agency will not delay the June compliance date for an Obama-era rule targeting conflicts of interest in the retirement savings market.

“We have carefully considered the record in this case, and the requirements of the Administrative Procedure Act, and have found no principled legal basis to change the June 9 date while we seek public input,” Acosta wrote in a Wall Street Journal opinion piece. The Labor Department, he said, will seek additional comment about ways to amend the regulations, known as the fiduciary rule.

The lawsuit targeting Trump's 2-for-1 regulatory order was filed by Public Citizen, the Natural Resources Defense Council and the Communication Workers of America. They contend the order exceeds the president's constitutional authority, violates his duty under the Constitution's take care clause, and orders federal agencies to engage in unlawful actions that will harm Americans, including those organizations' members.

The government counters in its motion to dismiss that the claims are premature because no agency has taken any action that injures them or their members.

“Absent such concrete action, plaintiffs can only speculate about the effect (if any) on them,” Justice Department lawyers wrote in their papers. “Such speculation plainly fails Article III standing requirements.”

Moss on Tuesday said both motions—to dismiss and for summary judgment—included jurisdiction and merits issues and it made sense to get all of the issues out, according to Allison Zieve, director of the Public Citizen Litigation Group. Zieve said Moss would decide the jurisdiction issues before the merits.

Thirteen public health organizations have filed an amicus brief supporting the challengers. The Trump administration has drawn a supporting brief from 14 states led by West Virginia and Wisconsin.

“Over the last several years, the administrative state has accelerated further the long-term growth of new regulatory burdens, while rarely eliminating unnecessary regulations issued in the past,” lawyers for the states wrote. “The result is a situation where agencies have implemented far more regulatory burdens than Congress ever envisioned.”

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U.S. District Judge Randolph Moss in Washington on Tuesday denied the government's request that he freeze the action on the plaintiffs' motion for summary judgment in Public Citizen v. Trump.

The Justice Department had urged Moss to rule first on the government's motion to dismiss the case on the ground that the challengers, who include labor and environment advocates, don't have standing to bring a case in the first place and that their claims are premature.