Overturning The

Congressional Review Act

Restoring the Constitutional Method for Passing Laws

President Barack Obama’s agencies issued fifteen laws to protect our environment, workers, teachers, privacy, and public health and safety. In 2017, Republicans repealed them using the unconstitutional Congressional Review Act. We intend to restore all fifteen.

 

One of those fifteen laws, the Stream Protection Rule, would have protected a small community near Hesperus, Colorado. The King II Mine threatens to pollute the groundwater as it digs federal coal out of poorly understood geologic deposits overlying well water. There, one drop of pollution spreads farther and lasts longer. The mine takes so much local water from that high-desert area that the La Plata River runs dry every year.

 

The Stream Protection Rule required more water quality monitoring and more pollution protections from coal mines like the King II Mine. Republicans repealed that rule using the Congressional Review Act. That act violates the Constitution in three ways.

First, the Congressional Review Act violates the Constitutional requirement that the government give all citizens "equal protection of the laws." Fifty-one votes does not equal sixty. The Act allows the Senate to pass legislation under the Review Act with only fifty-one votes; the Senate’s Cloture Rule, however, requires sixty votes to pass most other legislation. Thus, the Review Act protects citizens unequally.

Second, the Congressional Review Act violates the Fifth Amendment's requirement that government give citizens due process under the law before taking that citizen's life, liberty, or property. By implementing an easier process to pass laws through the Senate to punish agencies, the Congressional Review Act changes the Constitutional process for passing laws in violation of due process.

Third, the Congressional Review Act and the Senate Cloture Rule, together, violate the separation of powers by creating a situation in which Congress can more easily rescind statutory authorities than expand them. The Congressional Review Act allows Congress to repeal delegations to agencies with fifty-one votes, but the Cloture Rule prohibits Congress from delegating new authorities to agencies without sixty votes in the Senate. Over time, that one-way ratchet erodes the Executive Branch’s authorities, which violates the separation of powers.

For these three reasons, the Congressional Review Act violates the Constitution. Acts contrary to the Constitution are void. Because the Constitution voids the February 16, 2017, act that rescinded the Stream Protection Rule, the Stream Protection Rule remains in effect and applied to the King II Mine expansions. Restoring the Stream Protection Rule will stop that coal mine expansion.

We intend to overturn the Congressional Review Act and to restore all fifteen regulatory protections that President Obama's agencies had issued. We notified the United States of these violations in mid-October. You can read the letter here.

We intend to update this page to reflect the litigation steps as they happen. And we love questions and suggestions.

If you can, please pitch in for the work we are doing for you and for our United States.

Congressional Review Act

Litigation Status

We are suing the United States to stop the King II Mine and to restore the Stream Protection Rule. The U.S. Department of the Interior's Office of Surface Mining Reclamation and Enforcement (OSMRE) approved two expansions: the 950-acre Modification in 2018 and the 2462-acre Dunn Ranch Lease in January 2021.

In October 2020, we sent OSMRE a letter requesting the agency to stop the Modification. That letter explained the legal violations, and the Surface Mining Control Act requires us to give OSMRE sixty days to cure the violations. It never responded. In December 2020, we filed a lawsuit in the U.S. District Court for the District of Colorado. Citizens for Constitutional Integrity v. United States, 20-cv-3668-MSK (D. Colo.).

On January 15, 2021, the Department of the Interior approved the Dunn Ranch Lease. We learned about that approval on January 27, and two days later, we sent another sixty-day letter in which we asked OSMRE to stop the Dunn Ranch Lease. We do not expect OSMRE to do so, so we are preparing another lawsuit.

In the meantime, the Court has directed the parties to file a case management plan by February 22.

 

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© 2020 by Citizens for Constitutional Integrity. A 501(c)(4) nonprofit organization.