6 months ago

Lawsuit claims its unconstitutional for Congress to pass laws

By Jonathan Wood Attorney

That’s the gist of a lawsuit challenging Congress’ use of the Congressional Review Act (CRA). According to the complaint, Congress violates the separation of powers by passing a law voiding an agency’s regulation.

If you remember your civics class, that should sound very strange to you. The Constitution gives Congress the power to make the law, subject to a Presidential veto. And then the President is charged with executing the law Congress has passed. There’s nothing in there that says Congress can’t change the law if it would mean the President (or the agencies he oversees) has less to execute.

The target of this lawsuit is the CRA which, as our Red Tape Rollback project explains, allows Congress and the President to disapprove rules adopted by agencies. The way it works is (1) agencies must report every rule they adopt to Congress; then (2) within 60 legislative days, both houses of Congress can use fast-track procedures to pass a bill disapproving the rule; and, if they do (3) the bill goes to the President for his signature. The result of this process, as Schoolhouse Rock has taught a generation of children, is called a law.


Using the CRA, Congress and the President have enacted a law disapproving an agency’s rule that an environmental group likes. How unfortunate for them. But that’s politics. Rather than accept the defeat, the group decided to make a federal case out of it.

The theory of this lawsuit turns the Constitution on its head. Administrative agencies and the regulations they adopt are nowhere in the Constitution. They only have power if Congress chooses to delegate it to them (which is itself a controversial constitutional issue). Since agencies have no inherent power, Congress is free to limit its delegations to them as it sees fit. Delegation is not a one-way ratchet. Congress gives agencies power and later limits it all the time.

But you don’t have to take my word for it. The group’s lawyer explained the theory this way:

The Congressional Review Act throws the balance of power out of whack and opens the door for politicians in Congress to meddle in decisions that ought to be made by experts at federal agencies.

In other words, the group thinks it’s unconstitutional for our elected representatives in Congress to make law if the group prefers the decision to be made by unelected, unaccountable bureaucrats.

Specifically, the lawsuit argues that Congress can’t second guess agency rules unless it completely reforms the statute the rule was enacted under. There’s nothing in the Constitution and no court decision to support such a strange rule. In fact, the Ninth Circuit and D.C. Circuit have expressly held that Congress does not violate the separation of powers when it passes a law rejecting an agency’s particular application of a statute. The D.C. Circuit called the argument “meritless” explaining that the laws “easily passes muster under established law.”

That’s because the Constitution is clear. If both houses of Congress pass a bill and the President signs it, it’s a law. Unless it exceeds Congress’ enumerated powers or infringes an individual constitutional right, it’s constitutional.

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