PLF steps up to defend Congressional Review Act in court

ANCHORAGE, ALASKA;  MAY 4, 2017:  Pacific Legal Foundation has just stepped forward to defend the Congressional Review Act (CRA), the 1996 statute that allows Congress to rein in bureaucracies by voiding harmful regulations.

PLF is the first of two groups to move to intervene against a federal lawsuit by an environmental activist group — the Center for Biological Diversity — which claims, astonishingly, that Congress and the president violate the Constitution when they pass a law that rescinds a bureaucracy’s regulation.  With its motion to intervene, PLF has also filed a motion to dismiss the lawsuit, arguing that CBD’s challenge has no basis in the Constitution, the Congressional Review Act, or court precedent and should be immediately booted out of court.  PLF is the only group in the litigation that has sought a dismissal.

“CBD’s lawsuit seeks to turn the Constitution on its head, placing unelected, unaccountable bureaucrats above Congress,” said PLF attorney Jonathan Wood.  “Under our Constitution, administrative agencies only have power that Congress chooses to delegate to them.  Congress is free to limit its delegation of power as it sees fit.  What Congress gives, it can take away, or curtail.  Using the Congressional Review Act to strike down an agency’s regulatory decrees is an example of that constitutional principle in action.”

Under the CRA, agencies must submit every rule they adopt to Congress for review.  Congress then has a brief time to use expedited procedures to enact a resolution of disapproval and send it to the president for his signature.  Congress and President Trump have used the CRA 13 times to void Obama Administration rules.  CBD’s lawsuit focuses on the rescinding of a regulation against hunting and trapping of predator species in Alaska’s national refuges — a restriction that interfered with the state’s ability to manage wildlife and outlawed responsible hunting practices, undermining opportunities to responsibly hunt for food or pursue income from guided hunts.

In seeking to intervene in Center for Biological Diversity v. Zinke, in defense of the CRA’s constitutionality, PLF represents itself along with several key hunting organizations and individuals.  They include:  Alaska Outdoor Council, Big Game Forever, and Alaska Master Guides Kurt Whitehead and Joe Letarte, both of whom also hunt in their personal time.

CRA is fully consistent with the Constitution

“Schoolhouse Rock has taught generations of children how a bill becomes a law under the Constitution,” said Todd Gaziano, PLF’s DC Director and Senior Fellow in Constitutional Law, as well as the director of PLF’s Red Tape Rollback project.  “CBD could use a refresher.  When a majority of both houses of Congress pass a bill disapproving an agency rule and the president signs it, we call that a law, and this applies as much to legislation passed under the CRA as to any other form of legislation.  Laws enacted using the Congressional Review Act’s procedures are fully consistent with the Constitution.”

PLF’s intervention in this litigation reflects its established role as a leading CRA champion.  The Red Tape Rollback project, founded and overseen by PLF, is a multipronged program to educate Congress and the public on dynamic ways to deploy the CRA against regulatory overreach.  A significant coalition of think tanks and public interest groups has joined this project, including The Club for Growth, The Heritage Foundation, The Buckeye Institute, Competitive Enterprise Institute, and State Policy Network as Founding Partners; and Cause of Action Institute, R Street, Independent Women’s Forum, and Center of the American Experiment as Partners.

“The Congressional Review Act is essential to restoring our elected representatives to their proper role overseeing the administrative state,” Gaziano said.  “As the foremost independent advocate for strategic use of the CRA, and as a leading litigator against regulatory abuses by the administrative state in general, PLF brings a unique interest and expertise to this litigation.  For this reason, PLF’s intervention is more than appropriate — it is essential.”