Alaska moves to defend Congressional Review Act
As previously noted (here and here), Pacific Legal Foundation moved to intervene in a lawsuit brought by the Center for Biological Diversity (CBD), which challenges the Congressional Review Act (CRA) on the bewildering grounds that Congress, together with the President’s signature, may not enact laws that revoke bureaucrat-created regulations.
At issue is Public Law No. 115–20, which invalidated an onerous regulation (the Refuges Rule) that severely restricted the use of land in Alaska’s National Wildlife Refuges. Last week, the State of Alaska moved to join the lawsuit against CBD. And like PLF, Alaska submitted a proposed motion to dismiss.* In fact, Alaska incorporated PLF’s arguments in full, while helpfully supplementing the case to throw out CBD’s baseless arguments.
Briefly, PLF—now joined by Alaska—offers the Court two uncontroversial bases to dismiss CBD’s lawsuit. First, the enactment of Public Law No. 115–20 was a routine and constitutional exercise of Congress’s legislative authority. And now that Public Law No. 115–20 has been adopted, it is the President’s constitutional obligation to enforce that law, and not the invalidated Refuges Rule. CBD’s argument to the contrary, i.e., that executive-branch regulations trump duly enacted laws, would turn the Separation of Powers doctrine on its head.
Second, the Congressional Review Act expressly precludes judicial review of Congress’ adoption and application of its internal rules to disapprove executive-branch rules under the act. And even if the Court were permitted to review the enactment of Public Law 115–20, there is no dispute but that this law was made in full compliance with the CRA.
The State’s brief also sets the record straight on its management of Alaskan wildlife, to counter what Alaska describes as CBD’s “disparag[ing]” statements. Finally, Alaska argues that because the federal government has not attempted to adopt and enforce a rule that is substantially similar to the Refuges Rule, CBD’s constitutional challenge is not ripe for review.
Ultimately, the Court has no shortage of reasons to dismiss CBD’s case.
The Refuges Rule was properly and constitutionally invalidated through the Congressional Review Act. And PLF will continue to defend both the CRA and the Separation of Powers doctrine.
* The State’s proposed Motion to Dismiss was stricken as premature. This action is merely procedural: the State apparently failed to select the correct preface (“proposed”) when it filed its papers electronically. We expect that this technical error will be corrected and that the Court will ultimately consider Alaska’s Motion to Dismiss.