Archives for April 2017

The Center for Biological Diversity’s Flawed Legal Challenge to the Congressional Review Act – Part I

On April 20, 2017, the Center for Biological Diversity (“CBD”) filed suit in the U.S. District Court for the District of Alaska challenging the Congressional Review Act (“CRA”) and Congress’s use of the CRA to invalidate the so-called Refuges Rule.[1]  The suit claims the CRA violates the separation of powers and that it is ultra vires (illegal) for the Department of the Interior to honor the disapproval resolution.  As explained below, these claims have little merit and although the litigation will likely not end until the Supreme Court has spoken, we believe the courts will ultimately rule the CRA is constitutionally valid.

CBD fails to acknowledge that Congress intentionally included, as a direct result of the Chadha decision, the constitutional mandates of bicameralism and presentment in the Congressional Review Act disapproval procedure.  

Bicameralism and presentment is the Constitutional requirement that both Houses of the Congress pass a bill and that it be presented to and signed by the President.[2]  The CRA satisfies the constitutional mandates of bicameralism and presentment two-fold.  First, both Chambers of Congress passed the CRA and presented it to President Clinton, who signed it in March 1996 – satisfying the requirements of bicameralism and presentment when enacting the statute.  Second, the CRA disapproval process requires that each joint resolution be an enacted law that is passed by both Chambers and signed by the President.[3]  Until 2017, the CRA’s disapproval procedure had only been successfully used once because the bicameralism and presentment requirements make it difficult to pass without a unified legislative and executive government.  Historical attempts to use the CRA resulted in three joint resolutions failing to pass both Chambers and five joint resolutions being vetoed by the President.  These constitutional safeguards continue to restrain the unfettered use of the CRA to avoid separation-of-powers claims.

CBD refuses to acknowledge that CRA joint resolutions of disapproval conform to these constitutional requirements and are duly enacted laws.[4]  CBD repeatedly claims that a CRA disapproval resolution’s constraint on future rulemaking activity violates INS v. Chadha because Congress must use the constitutionally-mandated process of bicameralism and presentment to amend underlying statutes.[5]  That is, it argues that the CRA’s prohibition on the Department of Interior issuing the Refuges Rule in substantially the same form is an invalid attempt to restrain the agency.  CBD’s reliance on Chadha is misplaced because Congress enacted the CRA in the aftermath of Chadha, and crafted the CRA disapproval process with Chadha in mind.  While CBD is correct that the Chadha holding reiterates Congress’ obligation to use bicameralism and presentment to enact laws; CBD ignores the distinguishing facts of Chadha.  In Chadha, Congress used a “single-chamber legislative veto” to overturn a presidential immigration enforcement decision.  By its very name, a “single-chamber legislative veto” does not satisfy the bicameralism requirement.  The legislative history of the CRA specifically mentions Congress’ decision to require the enactment of joint resolutions to avoid future Chadha-based challenges.[6]  According to CBD, Congress failed to disapprove of the Refuges Rule in conformity with bicameralism and presentment.  But the lawsuit details when the joint resolution was passed by each Chamber and states that “[a]fter presentment on March 27, 2017, President Trump signed the Joint Resolution on April 3, 2017.”[7]

CBD’s separation-of-powers claim must fail because, as with any other enacted law, the joint resolution disapproving the Refuges Rule satisfied the constitutional mandates of bicameralism and presentment.  Having refuted CBD’s claim that CRA and the disapproval resolution for the Refuges Rule did not satisfy the requirements of bicameralism and presentment, we move to its claim that agency rulemaking authority can only be restricted by Congress when it amends the underlying authorizing statute.

CBD fails to acknowledge numerous administrative law procedural statutes that constrain agency rulemaking authority without amending an agency’s underlying authorizing statutes.

The CRA prohibits agencies from issuing subsequent rules in “substantially the same form” as a disapproved rule.  This ban acts as an additional constraint on agency rulemaking authority similar to other procedural statutes found throughout administrative law.  The Administrative Procedure Act (“APA”), the Regulatory Flexibility Act (“RFA”), the National Environmental Policy Act (“NEPA”), the Unfunded Mandates Reform Act (“UMRA”), and the Small Business Regulatory Enforcement Fairness Act (“SBREFA”) all restrict agency rulemaking authority by creating procedural requirements that can restrain agencies by requiring them to regulate using different alternatives based on the predicted outcomes.[8]  These constraints on agency rulemaking authority help reduce separation-of-powers concerns from the other side of the coin–that Congress unconstitutionally delegated too much authority to the agency.  To avoid an unconstitutional delegation of power, courts have been supportive of enforcing these procedural restraints on agency rulemaking.[9]  Here, through the CRA, Congress is constraining its previously delegated legislative authority to Interior.  Therefore, CBD’s claim that agency rulemaking authority may not be constrained without amendment of the underlying statute must fail.

CBD fails to acknowledge Congress’ constitutional authority to constrain agency rulemaking authority using its power of the purse.

Alternatively, Congress may approve or disapprove of agency action by using its taxing and spending powers to decide whether to appropriate funds to an agency program.[10]  Appropriations riders can be tacked on to bills being considered by Congress without being related to the goals of the underlying bill.  One type of these is limitation riders which often specifically prohibit the use of funds for specific agency activities or programs.  Using its power of the purse, Congress can use limitation riders to prevent agencies from using any funds on programs that Congress does not approve of – without amending the underlying authorizing statute that might prescribe the agency take that action.[11]  In 2000, Congress used an appropriations rider to restrict Interior’s ability to promulgate final rules concerning hard rock mining–without amending Interior’s underlying statutory authority to prescribe rock mining restrictions.[12]  No limitation rider has ever been successfully challenged in court as violating the separation of powers.

The CBD lawsuit repeatedly asserts that the CRA prohibition on subsequent rules in “substantially the same form” violates the separation of powers because Interior’s underlying authorizing statute was not amended.  This argument fails because it does not consider that Congress is the genesis of agency rulemaking authority.[13]  These assertions ignore all prior procedural statutes that constrain agency rulemaking authority without amending the agency’s underlying authorizing statute.  This argument also ignores Congress’ authority to constrain agency rulemaking authority by passing appropriations riders.  Because Article I legislative authority is vested solely in Congress, the executive branch has little or no inherent authority to promulgate rules.  Congress is the only branch that may enact laws to create, delegate authority to, or abolish agencies as it deems appropriate to carry out the legislative function.[14]  Congress, then, may rescind the authority it delegates to agencies by enacting or repealing laws.  Indeed, federal agencies, not Congress, violate the separation of powers when they usurp the essential legislative function of Congress by continuing to promulgate regulations in direct contravention of enacted laws.  Therefore, CBD’s claim that Congress has “expanded its own power at the expense of the executive branch” is incorrect because agency rulemaking authority flows from Congress alone and has been constitutionally constrained by numerous prior statutes and appropriations riders.[15]

Travis Millsaps is a counsel at Cause of Action Institute.  You can follow him on Twitter at @TravisMillsaps.

[1] Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska, 81 Fed. Reg. 52,247 (Aug. 5, 2016) (the “Refuges Rule”).

[2] U.S. Const. art. 1, § 7, cls. 2, 3; id. art. 1, §§ 1, 7, cl. 2.

[3] 5 U.S.C § 801(b)(1) (referring to § 802 disapproval process).

[4] CBD Compl. ¶ 45 (claiming that any reliance by Interior on enacted joint resolution of disapproval is “contrary to law”).

[5] E.g., CBD Compl. ¶¶ 4, 21-23, 27, 44 (citing 462 U.S. 919 (1983)).

[6] CRA Legislative History, 142 Cong. Rec. at S3684 (bill sponsors citing Chadha and resolving that the case “narrowed Congress’ options to use [the CRA’s] joint resolution of disapproval”).

[7] CBD Compl. ¶ 39 (emphasis added).

[8] E.g., Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.; Regulatory Flexibility Act, §§ 601-12; National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; Unfunded Mandates Reform Act, Pub. L. No. 104-4; Small Business Regulatory Enforcement Fairness Act, Pub. L. No. 104-121 (1996); see generally 42 U.S.C. § 4332.

[9] See United States v. Henry, 136 F.3d 12 (1st Cir. 1998) (discussing that existence of multiple constraints on delegated legislative authority to EPA supports finding of constitutional delegation of power).

[10] U.S. Const. art. 1, § 8, cl. 1.

[11] Id. § 9, cl. 7.

[12] Pub. L. No. 106-291, § 156, 114 Stat. 922, 962-963 (prohibiting Secretary of Interior from using any funds “to promulgate final rules to revise 43 C.F.R. subpart 3809[.]”).

[13] CBD Compl. ¶¶ 2, 5, 40-42, 44.

[14] U.S. Const. art. 1, § 8, cl. 18.

[15] CBD Compl. ¶ 4.

A Low Bar for White House Transparency – But Concerns Rising

Citing “national security risks and privacy concerns,” the White House recently announced that it would no longer disclose the contents of its visitor logs to the public, contrary to a policy introduced and maintained (albeit, inconsistently) by the Obama Administration.  According to The New York Times, White House press secretary Sean Spicer went so far as to suggest that disclosure would be “unnecessary, intrusive, or even harmful.”

The Trump Administration’s proffered justification for reversing President Obama’s discretionary disclosure of the logs is overstated. While the Executive Branch has an undeniable interest in some secrecy, the goals of good government are better served when the public has knowledge of those with whom the President—the quintessential public servant—is spending his time, whether in consultation about government policy or on the golf course.  Yet the decision to keep visitor logs secret is only the latest indication of a troubling trend emerging from the Trump White House regarding a lack of support for open and transparent government.

Of greater concern than the discontinuation of the WH visitor logs is the apparent continued use by the Trump administration of the policy known as “White House equities.”

When a member of the public requests records from a federal agency under the Freedom of Information Act (FOIA), that agency will often “consult” or seek the input of another government entity that created any record at issue.  Under the Obama Administration, however, evidence suggested that agencies were sending records to the Office of White House Counsel whenever they were politically sensitive, newsworthy, or otherwise embarrassing to the administration.  The result of this policy was to delay the production of records when they should have been promptly released under FOIA requirements.  Cause of Action Institute even filed a lawsuit in an attempt to reverse President Obama’s overbroad “White House equities” policy.

Shortly after President Trump’s inauguration, we reached out to the new White House Counsel to request revisions to, or elimination of, this damaging policy.  We have yet to receive a response.

Ending “White House equities” review as currently practiced would strike a blow for accountability and the rule of law and would send a strong signal that this administration takes seriously its obligations to the public.  As others have noted, President Obama promised transparency and delivered one of the most secretive governments in American history.  The bar is already low; President Trump can and should do better.

Josh Schopf and Ryan Mulvey are counsels at Cause of Action Institute

John Vecchione discusses FBI lawsuit, Trump dossier on The Morning Show with Sean & Frank


John Vecchione discusses FBI lawsuit on WFTL’s Joyce Kaufman Show

CoA Institute Sues for Records on Potential FBI Payment to Democratic Opposition Researcher Who Compiled Infamous Trump Dossier

Washington D.C. – Cause of Action Institute (“CoA Institute”) has filed a lawsuit in the U.S. District Court for the District of Columbia seeking records relating to the relationship between the Federal Bureau of Investigation (“FBI”) and Christopher Steele, a former British spy who made headlines after he was identified as the lead author of the largely-discredited Trump dossier.

According to a news report, Mr. Steele entered an agreement with the FBI a few weeks before the November 2016 election to investigate then-candidate Donald Trump while, at the same time, he was employed by an opposition research firm to collect information for Democratic presidential nominee Hillary Clinton.

CoA Institute President and CEO John Vecchione: “If a former spy who was being paid to do opposition research on a U.S. presidential nominee was also on the FBI’s payroll, there are serious concerns about the agency’s independence. We need to better understand this financial relationship to ensure the FBI was not misusing taxpayer money to interfere in a presidential election on behalf of one of the candidates.”

On March 7, 2017, CoA Institute sent a FOIA request to the FBI seeking access to records into whether the FBI paid money, or had plans to pay, Mr. Steele for any purpose. To date, the FBI has failed to produce any responsive records within the applicable FOIA timeframe.

The full Complaint can be found here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute:


Court of Appeals Upholds Decision on Reg That Will Put 60 Percent of New England Ground Fishermen Out of Business

Judges refuse to consider legal arguments, but implore Congress to clarify the law about who should pay for at-sea monitors 

Washington, D.C. – On Friday, the U.S. First Circuit Court of Appeals upheld the District Court’s ruling last summer that a lawsuit filed by Cause of Action Institute (CoA Institute) on behalf of Plaintiffs David Goethel and Northeast Fishery Sector 13 against the U.S. Department of Commerce should be dismissed.

In its opinion, the Court found that the fishermen’s suit was untimely and therefore did not consider the Plaintiff’s legal arguments that requiring fishermen to pay for monitors is against the law.  However, in a rare move, the judges highlighted the devastating economic impacts of the regulation in question, and urged Congress to clarify the law and who should pay for the at-sea monitors.

“I am disappointed by the decision,” Goethel said. “But I’m hopeful that Congress will heed the Court’s direction and clarify the law. It is the government’s obligation to pay for these at-sea monitors. I’ve made a living fishing in New England for more than 30 years and I have never exceeded a single fishing quota. But I can’t afford to fish if I am forced to pay for at-sea monitors.  I’m grateful to Cause of Action Institute for bringing this case forward, and I remain hopeful that Congress will clarify the law to ensure the New England groundfishing industry is not regulated out of existence.”

Northeast Fishery Sector 13 Manager John Haran said, “I’m disappointed that timeliness of the case was the Court’s deciding factor and not the merits of our arguments. The fishermen in my sector can’t sustain this industry funding requirement and many will be put out of business if this mandate remains in place.”

Cause of Action Vice President Julie Smith said, “We are disappointed that the First Circuit did not reach the merits of our case.  While we respect the opinion of the First Circuit, the federal government is clearly overextending its regulatory power and is destroying an industry.  We are considering all of our legal options for judicial review on the merits.  We also encourage Congress and the Administration to act swiftly to ensure that these unlawful regulatory costs do not put an end to the tradition of generations of proud fishermen in New England.”


In December 2015, the Department of Commerce ordered that fishermen who fish for cod, flounder and certain other fish in the Northeast United States not only must carry National Oceanic and Atmospheric Administration (“NOAA”) enforcement contractors known as “at-sea monitors” on their vessels during fishing trips, but must pay out-of-pocket for the cost of those monitors.  This “industry funding” requirement would devastate the Northeast fishing industry, at the price of many jobs and livelihoods.  The opinion by the First Circuit upholds the lower court’s decision and allows this job-killing mandate to remain in place.

To learn more, visit the Cause of Action Institute website.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute:

Withdraw Unlawful Plan Forcing Fishermen to Pay for At-Sea Monitors

Washington, D.C. – Cause of Action Institute (“CoA Institute”)  has submitted a regulatory comment to the New England Fishery Management Council (“NEFMC”) questioning the Council’s legal authority to move forward a controversial amendment that would force more fishermen to pay for costly at-sea monitors, which are the government’s responsibility.  CoA Institute advised the NEFMC to abandon the Omnibus Amendment, which would imperil an already hard-hit fishing industry by requiring certain fishermen to pay for monitors to police their at-sea activity.  The plan would also open more regional Atlantic fisheries to industry-funded monitors. 

“The Omnibus Amendment is unlawful and will make it virtually impossible for countless small-business fishermen to pursue their livelihood,” said Julie Smith, CoA Institute Vice President. “Many of these fishermen come from families that have fished American coastal waters for generations.  The federal government should not regulate them out of business. Congress has not authorized it and the economic consequences are too dire. If an agency lacks statutory authority or appropriated funds, it has no power to act. The New England Council should withdraw the Omnibus Amendment.”

The cost for a monitor under the amendment is expected to range from $710 to $818 per day at sea.  That would exceed the revenue a fisherman typically lands from his daily catch. 

CoA Institute represents fishermen challenging another industry-funded monitoring program in the Northeast groundfish fishery.  In that case, a government study predicted that industry-funded monitoring would result in up to 60 percent of mostly small-scale vessels going out of business—a result that the government blithely characterized as a “restructuring” of the groundfish fleet.  Learn more about the case HERE

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: