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This post is Part II in a series discussing the lawsuit from the Center for Biological Diversity.  Part I is available here.

The joint resolution disapproving the Refuges Rule was a proper use of the CRA’s look-back provision.  But even if it wasn’t, a court is unlikely to overturn the resolution on that basis.

A joint resolution disapproving an agency rule via the Congressional Review Act (“CRA”) really only differs from any other law invalidating a regulation in two respects.  First, it allows the Senate to pass the resolution without needing sixty votes to end debate.  The 60 vote necessity to do so for other legislation is not a Constitutional mandate.  And second, it prohibits the agency from reissuing the rule in substantially the same from.  The latter provision could be added to any piece of legislation overturning a regulation, so all that is really at stake is whether the Senate may operate under expedited procedures and a lower vote threshold.

The CRA requires a disapproval resolution to be introduced within sixty days of the agency submitting the requisite report to Congress.[1]  But if the report is submitted within the final sixty legislative days of a congressional session, then that report is considered to have been submitted on the fifteenth legislative day of the new Congress.[2]  This is known as the look-back provision and it is designed to allow a new Congress to review all of the midnight rules rushed out the door at the end of the previous Congress.  The look-back provision is especially important after an election year when a lame-duck administration tries to push through an aggressive regulatory agenda for the incoming administration to unravel.

In its lawsuit, the Center for Biological Diversity  claims that the Refuges Rule was not eligible for the CRA’s look-back scheduling provision because it qualifies as a hunting regulation that is exempt from Section 801’s reporting requirements by Section 808.[3]  This claim fails for at least two reasons.  First, the look-back provision is an internal congressional scheduling rule, which is the type of rule courts often avoid under the political-question doctrine.  Second, the Refuges Rules does not qualify as a hunting rule under the Section 808 exemption and was thus properly subject to the look-back provision.

The interpretation of internal congressional rules is a political question that courts often avoid.

Congress creates its own rules of administration and courts are loath to meddle in them.  The Constitution states that “[e]ach House may determine the rules of its proceedings[.]”[4]  Legal challenges to those rules often implicate the political question doctrine, under which courts avoid cases where there has been a “textually demonstrable constitutional commitment of the issue to a coordinate political department.”[5]

One example is Metzenbaum v. Federal Energy Regulatory Commission, where the D.C. Circuit found that judicial interpretations of congressional rules is inappropriate because “there is ordinarily ‘no warrant for the judiciary to interfere with the internal procedures of Congress.’”[6]  “To decide otherwise would subject Congressional enactments to the threat of judicial invalidation on each occasion of dispute over the content or effect of a House or Senate rule.  The majority having given its sanction to legislation, and implicitly the process followed in its enactment, a minority might yet frustrate its implementation through litigation based on purported violations of ‘housekeeping’ rules.”[7]  One exception to this rule is where the “rights of persons other than members of Congress are jeopardized by Congressional failure to follow its own procedures[.]”[8]  This approach has given rise to the so-called “enrolled bill rule,” which holds that “if a legislative document is authenticated in regular form by the appropriate officials, the courts treat that document as properly adopted.”[9]  This rule stretches all the way back to the Supreme Court’s 1892 decision in Field v. Clark.[10]

Here, the CRA is clear that the look-back provision is nothing more than a scheduling rule of Congress:

This section is enacted by Congress as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution[.][11]

There does not appear to be any contention that the joint resolution was improperly voted on or incorrectly enrolled by the congressional officials upon its passage.  The Center for Biological Diversity merely claims that Congress should have determined that the Refuges Rule was ineligible for the look-back provision.  But Congress did make that determination, and courts are typically hesitant to get involved in such matters.

This conclusion is buttressed by the fact that the CRA expressly precludes judicial review of congressional determinations made under the CRA.  Section 805 states that “[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.”[12]  The determination made by both chambers of Congress that the Refuges Rule qualifies for the look-back scheduling provision is precisely the type of “determination” that the CRA exempts from judicial review.

The Refuges Rule does not qualify for the Section 808 exemption.

Despite theCenter for Biological Diversity’s claim, the Refuges Rule does not fall within the CRA’s Section 808 exception.  The CRA provides that “[b]efore a rule can take effect,” the agency promulgating the rule must submit a report to Congress.[13]  Section 808 provides that notwithstanding that requirement, a rule may take effect at such time as the agency decides if the rule “establishes, modifies, opens, closes, or conducts a regulatory program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping[.]”[14]  The Center for Biological Diversity claims that the “Refuges Rule is covered by the plain language of Section 808 . . . [b]ecause it disallows certain hunting practices that may be approved by the Board[.]”[15]

Although the Center for Biological Diversity is correct that the Refuges Rule affects hunting practices, it makes no attempt to argue that the regulation impacts “a regulatory program” aimed at “commercial, recreational, or subsistence activity.”  By its plain terms, the Refuges Rule is not directed at subsistence activity; it is titled “Non-Subsistence Take of Wildlife”[16] and the Center for Biological Diversity admits in its complaint that the rule does not affect takes “for subsistence by federally-qualified subsistence users.”[17]  The rule also does not affect either commercial or recreational activity but is instead aimed at “the conservation of natural and biological diversity, biological integrity, and environmental health on refuges in Alaska[.]”[18]  The rule focuses on “predator control” by “prohibit[ing] several particularly effective methods and means for take of predators[.]”[19]  The U.S. Fish and Wildlife Service (“FWS”) “define[s] predator control as the intention to reduce the population of predators for the benefit of prey species.”[20]  This includes practices “such as . . . those undertaken by government officials or authorized agents, aerial shooting, or same-day airborne take of predators.  Other less intrusive predator reduction techniques such as . . . live trapping and transfer, authorization of particularly effective public harvest methods and means, or utilizing physical or mechanical protections (barriers, fences) are also included[.]”[21]

The Refuges Rule does not affect a regulatory program involving commercial licenses, recreational takes, or any type of nonconsumptive recreational use, such as wildlife viewing or photography.  The Refuges Rule is a conservation regulation, which is not included among Section 808’s exceptions.

FWS is clear about this in its final rule.  In response to a commenter concerned that the regulation would impact ecotourism, FWS responded: “Although this rule may result in slight changes in refuge visitor experiences, we do not expect this rule to significantly impact visitors engaged in either hunting or nonconsumptive uses like wildlife viewing.”[22]  FWS also wrote that “there may be slight effects to recreational big game hunting on refuges by eliminating a hunter’s ability to use a few specific methods and means of take.  However, until recent years, many of these methods and means were prohibited Statewide.”[23]  FWS inclusion of passing references to “slight changes” and “slight effects” to recreational activities demonstrates that the Refuges Rule does not establish, modify, open, close, or conduct “a regulatory program” related to commercial or recreational activities.  At most, it may have slight impacts on other regulatory programs not included in this rule.[24]

Therefore, the Refuges Rule does not qualify for the CRA’s Section 808 exception and all of Center for Biological Diversity’s arguments that follow from that characterization (i.e., that the Refuges Rule is not eligible for the look-back provision) must fail.

James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute and you can follow him on Twitter @JamesValvo.

 

[1] 5 U.S.C. § 802(a).

[2] Id. § 801(d)(1).

[3] Id.

[4] U.S. Const. art. 1, § 5, cl. 2.

[5] Baker v. Carr, 369 U.S. 186, 217 (1962).

[6] 675 F.2d 1282, 1287 (D.C. Cir. 1982) (citing Exxon Corp. v. FTC, 589 F.2d 582, 590 (D.C.Cir.1978)); see also Christoffel v. United States, 338 U.S. 84, 88–89 (1949) (“Congressional practice in the transaction of ordinary legislative business is of course none of our concern, and by the same token the considerations which may lead Congress as a matter of legislative practice to treat as valid the conduct of its committees do not control the issue before us.”); Mester Mfg. Co. v. INS, 879 F.2d 561, 571 (9th Cir. 1989) (“In the absence of express constitutional direction, we defer to the reasonable procedures Congress has ordained for its internal business.”).

[7] Metzenbaum, 675 F.2d at 1287.

[8] Id.; see also United States v. Rostenkowski, 59 F.3d 1291, 1305 (D.C. Cir.), opinion supplemented on denial of reh’g, 68 F.3d 489 (D.C. Cir. 1995) (The “Rulemaking Clause is not an absolute bar to judicial interpretation of the House Rules.”).

[9] United States v. Sitka, 845 F.2d 43, 46 (2d Cir. 1988) (citing United States v. Thomas, 788 F.2d 1250, 1253 (7th Cir. 1986)).

[10] 143 U.S. 649 (1892).

[11] 5 U.S.C. § 802(g).

[12] Id. § 805.

[13] Id. § 801(a)(1)(A).

[14] Id. § 808(1).  This section also exempts “any rule which an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest[.]”  Id. § 808(2).  Although the CRA’s legislative history makes passing reference to the section 808(1) delay, it does not provide a reason for why Congress included this provision.  See 142 Cong. Rec. S3683-01, S3685 (Apr. 18, 1996).

[15] CBD Compl. ¶ 58 (citing 5 U.S.C. § 808).

[16] “Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska,” 81 Fed. Reg. 52,247 (August 5, 2016) (the “Refuges Rule”); Id. at 52,247 (“This rule does not change Federal subsistence regulations or restrict the taking of fish or wildlife for subsistence uses under Federal subsistence regulations.”).

[17] CBD Compl. ¶ 37 (“The regulations do not change Federal subsistence regulations or otherwise restrict the taking of fish or wildlife for subsistence by federally-qualified subsistence users.”).

[18] Refuges Rule, 81 Fed. Reg. at 52,247.

[19] Id.

[20] Id. at 52,252.

[21] Id.

[22] Id. at 52,260.

[23] Id.

[24] 5 U.S.C. § 808(1).

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.