October 27, 2017

PLF files renewed motion to dismiss in lawsuit that challenges use of the Congressional Review Act

By Jeffrey W. McCoy Attorney

Today, PLF filed a renewed motion to dismiss in Center for Biological Diversity v. Zinke, a case that challenges Congress’ use of the Congressional Review Act to overturn a Department of Interior regulation that severely restricted certain types of hunting in Alaska’s National Wildlife Refuges. PLF’s motion, filed on behalf of itself and its clients Kurt WhiteheadJoe Letarte, the Alaska Outdoor Council, and Big Game Forever, demonstrates that the CRA, and all resolutions passed pursuant to it, are constitutional.

PLF and its clients were the first to join the lawsuit to defend Congress’ power to overturn the rule and the first to file a motion to dismiss the meritless lawsuit but, in an attempt to save its case, CBD amended its complaint to add new arguments. The amended complaint argues that Congress’s use of the CRA violates the Constitution’s separation of powers and interferes with the President’s constitutional requirement that he “take care that the laws be faithfully executed.” These arguments demonstrate a severe misunderstanding of the constitutional structure of the federal government.

CBD’s arguments are based on the faulty premise that the executive branch has inherent authority to make rules and regulations—or that the power to issue rules once granted to an agency cannot be easily restricted with subsequent laws. In fact, Article I of the Constitution places the legislative power with Congress. Sometimes Congress chooses to delegate too much authority to executive agencies (which can raise other constitutional issues), but it does not have to. And just as Congress is not required to delegate authority to the executive branch, it can also place restrictions on any delegation or rescind any previous delegation of rulemaking authority. The use of the CRA to overturn a regulation is merely Congress placing a limit on its delegation of legislative authority.

Contrary to CBD’s claims, the Take Care Clause reiterates this constitutional structure of separation of powers. As the Supreme Court has stated “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Instead, Congress gets to pass laws, and the President must execute those laws. When Congress uses the CRA to pass a joint resolution of approval, it enacts a law, and the President and the executive agencies must faithfully execute that law.

Unfortunately, CBD is not alone in its confusion over how the Constitution works. Critics of the CRA continue to argue that unelected bureaucrats, rather than Congress, should be in charge of enacting regulations. But elected representatives deciding what regulations govern their constituents is not unconstitutional, it is exactly what the framers envisioned. Any lawsuit that argues otherwise, like CBD’s, should be dismissed.

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