Lawsuit alleges that Congress, president can’t enact laws

Last week, Pacific Legal Foundation (PLF) filed a motion to intervene in a lawsuit brought by the Center for Biological Diversity (CBD) against the U.S. Department of the Interior.

CBD’s lawsuit challenges the recent use of the Congressional Review Act (CRA) to repeal an onerous 2016 U.S. Fish and Wildlife Service rule (Alaska National Wildlife Refuge Rule) that frustrates Alaska’s ability to manage its wildlife populations and implement responsible hunting and conservation practices.

In its suit, CBD completely misconstrues the Congressional Review Act. Its legal claims not only demonstrate a lack of understanding of the CRA, but also of the separation of powers under the Constitution.

CBD alleges that by enacting a law with the CRA, Congress violated the separation of powers by infringing on the executive branch’s rulemaking authority. This bizarre argument turns the separation of powers on its head. The executive branch has rulemaking authority only when Congress chooses to delegate that authority, and whatever Congress delegates by statute, it can similarly rescind by statute.

Anyone familiar with the famous Schoolhouse Rock! ditty “I’m Just a Bill” should recognize that the enactment of Public Law No. 115-20 (the Refuges Rule repeal law) was a routine and completely constitutional exercise of Congress’ legislative authority.  That the law in this case happens to repeal a burdensome executive branch regulation has absolutely no bearing on the bill’s constitutionality. Congress has legislated a repeal of the Refugees Rule, so the President must enforce that legislative repeal of the Refuges Rule.

In seeking to have the court invalidate Public Law No. 115-20 and resurrect the Refuges Rule, CBD is effectively arguing that regulations promulgated by unelected executive agency bureaucrats be permitted to override acts of Congress. Such an arrangement is not only upside-down, it’s plainly unconstitutional.

Because CBD’s claims threaten the balance of power between the coequal branches of government and the effectiveness of the CRA as a much-needed regulatory rollback mechanism, PLF and its clients have moved to intervene in CBD’s lawsuit to defend both the CRA and the constitutional separation of powers.

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