As we previously reported on this blog, Congress and the Trump administration have revived the Congressional Review Act (CRA) and set about rescinding a series of regulations promulgated during the Obama presidency.  Congress’ authority to invalidate an executive agency rule is rooted in Article I of the Constitution, which vests “[a]ll legislative Powers [t]herein granted” in Congress.  While Congress has delegated rule-making or quasi-lawmaking authority to executive agencies, Congress ultimately retains all legislative power, and thus any power delegated to the executive by Congress can later be restricted or withdrawn.

But according to a new lawsuit filed by the Center for Biological Diversity, the CRA amounts to congressional invasion of executive branch authority.   At issue in Center for Biological Diversity v. Zinke, Case No. 3:17-cv-00091-JWS (D. Alaska Apr. 20, 2017), is Public Law No. 115-20, which invalidated a rule adopted by the Interior Department near the end of President Obama’s second term. See “Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska,” 81 Fed. Reg. 52,248 (2016). The rule prohibited certain methods of predator control within Alaska’s national wildlife refuges.

Under the Center’s theory, once Congress delegates rulemaking authority to an executive agency, it relinquishes all oversight unless and until it expressly amends the statute that originally granted that authority. Otherwise, the Center contends, Congress unduly interferes with the role and prerogatives of the executive branch.  So, for instance, Congress could not rescind a regulation pertaining to water quality without first amending the Clean Water Act.  The Center also suggests that the CRA unconstitutionally alters Senate procedures by permitting regulations to be rescinded by a simple majority vote.

The Center’s suit faces several serious challenges. First, the Center’s claim may even not be justiciable because federal courts lack authority to rule on Congress’ internal rules (i.e. whether or not to maintain a filibuster rule).  And the CRA itself precludes litigation to challenge rescissions of regulations via the CRA.  But above all, it will be very tough to argue that a bill to rescind a regulation pursuant to the CRA, which passed both houses of Congress, and was signed into law by the President, violates separation of powers principles.

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