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 In 2017, Republicans repealed them using the unconstitutional Congressional Review Act.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 Republicans repealed that rule using the Congressional Review Act.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 equal protection. Fifty-one votes does not equal sixty. The Act allows the Senate to pass legislation under the Review Act with only fifty-one votes, but the Senate’s Cloture Rule, XXII, requires sixty votes to pass most other legislation. Thus, the Review Act protects unequally (1) citizens protected by statutes that delegate authorities to agencies and (2) citizens protected by statutes directly. This arrangement fails intermediate scrutiny and the rational basis test.
Second, the Congressional Review Act violates substantive due process under the Fifth Amendment because the Review Act does not rationally relate to accomplishing any legitimate governmental objective. An easier Sword of Damocles for rescinding regulatory authority does not encourage agencies to act in good faith, and not even Congress can rationally assume that agencies act in bad faith. Moreover, it does not accomplish any particular policy objective. Changing the structure for passing laws does not qualify.
Third, the Congressional Review Act and the Senate Cloture Rule, XXII, 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 delegating new authorities to agencies without sixty votes. Over time, that one-way ratchet erodes the Executive Branch’s authorities. That mechanism 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.
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