TPA Joins Coalition Urging Trump Administration to Examine Last Minute Litigation from Obama White House

Michi Iljazi

January 4, 2017

In just a few weeks President-Elect Donald Trump will be sworn in as the 45th President of the United States. There is a great deal of work to do for the new administration, including tax reform and Obamacare repeal. Regulatory reform is another issue that the Taxpayers Protection Alliance (TPA) has been looking at as a key issue for the new administration to tackle but there is another part of regulatory reform that has not gotten a great deal of attention. In a last minute effort to try and tie the hands of the Trump administration, many agencies are attempting to bring legally questionable litigation against the private sector in order to hamper the Trump administration when they take over. This “midnight litigation” is frivolous and TPA signed a coalition letter spearheaded by Frontiers of Freedom urging the new administration to carefully scrutinize any last minute legal action taken by federal agencies on behalf of the outgoing Obama administration. 

You can read the letter below:

December 28, 2016

Dear Vice President-Elect Pence:

It has come to our attention that a number of Departments and independent agencies are working furiously behind closed doors to bring significant, legally tenuous litigation against American business interests before January 20, 2017.  Doing so will saddle the Trump Administration with having to litigate cases based on job crushing liberal legal theories.  Such “midnight litigation,” particularly litigation that does not concern imminent threats to health or safety, must receive the strictest of scrutiny from the transition, and we urge the new Administration in the strongest possible terms not to treat such litigation with deference.

We have long been concerned about “midnight regulation” – regulations promulgated in the waning days of a lame duck administration.  Because of this concern, Congress enacted the Congressional Review Act, which provides Congress procedural tools to disapprove expeditiously these last ditch midnight regulations.  Congress, however, has no authority over litigation brought by the Executive Branch, and it will be incumbent upon the Trump Administration to decide whether to continue to pursue such cases.

President-elect Trump promised to “make American great again” and successfully argued that a rigged system has stymied growth, competitiveness and opportunity.  This is due in no small measure to the Obama Administration’s war on business, which was again made apparent only days ago with the President’s executive action to ban offshore oil drilling in areas of the Artic and Atlantic Oceans.  The mountains of regulations promulgated by the current Administration are a key reason economic growth has been dismally low.  Litigation is another form of executive action that can have similar devastating impacts on American jobs and competitiveness and should be reviewed in the same manner that the Transition is reviewing regulations.

Should the Obama Administration bring non-routine, last minute, legally unorthodox midnight litigation, your Administration should not hesitate to withdraw immediately from that litigation.  In such circumstances, the new Administration should not be constrained by notions of deference and should not support suspect legal theories that could have devastating economic effects for decades to come.

We appreciate the difficult work ahead of you and wish you the best as you continue to prepare to undo the damage of the last eight years.


George Landrith, President, Frontiers of Freedom
Horace Cooper, Senior Fellow, Heartland Institute
Grover Norquist, President, Americans for Tax Reform
The Honorable J. Kenneth Blackwell, Chairman, Constitutional Congress, Inc.
Richard A. Viguerie, Chairman,
Morton Blackwell, Chairman, The Weyrich Lunch
Phil Kerpen, President, American Commitment
Jim Martin, President, 60 Plus
Lew Uhler, President, National Tax Limitation Committee
Judson Phillips, Founder, Tea Party Patriots
David Williams, President, Taxpayers Protection Alliance
Seton Motely, President, Less Government
C. Preston Noell III, President, Tradition, Family, Property, Inc.
Scott Vanatter, President, The Last Best Hope on Earth Institute
Dee Hodges, President, Maryland Taxpayers Association
Brent Gardner, Chief Government Affairs Officer, Americans for Prosperity
Willes K. Lee, President, National Federation of Republican Assemblies
Mark Thomas, Founder, Freedom & Prosperity Caucus
John Cooper, President, Defending America Foundation
Susan Taylor, President, Strengthening America for All
William A. Estrada, Esq.,, Director of Federal Relations, Home School Legal Defense Association
Mat Staver, Esq., Founder & Chairman, Liberty Counsel
Lorenzo Montanari, Executive Director, Property Rights Alliance
Katie McAuliffe, Executive Director, Digital Liberty
Nicholas Willis, President, Americans for Liberty & Security
Michael J. Bowen, CEO, Coalition for a Strong America
Clyde Wayne Crews, Vice President for Policy, Competitive Enterprise Institute
Charles Sauer, President, Market Institute
Norm Singleton, President, Campaign for Liberty