The federal appeals court based in Denver has rejected the notion that a series of constitutional violations have ensued from a 1996 law that enables Congress to nullify new regulations.

Specifically, the U.S. Court of Appeals for the 10th Circuit found no constitutional flaw with the Congressional Review Act, which allows congressional majorities to “disapprove” a regulation from an executive branch agency. If the president signs a disapproval resolution, the regulation never takes effect.

Two groups suing over the repeal of an Obama-era environmental rule argued Congress’ actions unlawfully undermined the executive branch in violation of the separation-of-powers principle. But a three-judge panel for the 10th Circuit pointed out that under the U.S. Constitution, measures passed by Congress and signed by the president are lawful. A disapproval resolution, like other legislation, complies with that requirement.

“It makes no difference what internal parliamentary procedures Congress adopts in doing so,” wrote Judge Harris L Hartz in the Jan. 10 opinion, “so long as Congress complies with the fundamental constitutional requirements of bicameralism (approval by both Houses of Congress) and presentment (submission to the President for approval).”

Disapproval resolutions under the CRA are, in practice, a tool for Congress and a president of the same political party to rescind regulations issued in the waning months of a prior administration of the opposite party. For example, Republicans introduced 70 disapproval resolutions during President Donald Trump’s first two years in office, and succeeded in nullifying multiple Obama administration rules.

By the same token, President Joe Biden signed a disapproval resolution for a Trump-era methane regulation after Democrats regained control of Congress in 2021.

While presidents may veto a disapproval resolution, a successful resolution means a government agency may not reimpose its regulation in “substantially the same form.”

During the final month of the Obama administration, an agency within the U.S. Department of the Interior issued a “stream protection rule,” which would have addressed water contamination due to mining operations. The subsequent Republican-led Congress passed a disapproval resolution and Trump signed it in February 2017.

Citizens for Constitutional Integrity and Southwest Advocates, Inc. then filed suit in federal court in Colorado. They argued the overturn of the stream protection rule allowed the government to permit a 950-acre expansion of the King II Mine in La Plata County. The plaintiffs worried about deleterious effects to water and the larger ecosystem from increased mining.

Their lawsuit made three constitutional claims. First, the CRA allegedly violates the notion of separation of powers by eroding the authority of executive agencies to enact rules. Specifically, the CRA combines with the U.S. Senate’s super-majoritarian “cloture” rule to create a “one-way ratchet”: Repealing regulations takes only a simple majority of senators, while enacting legislation to restore the rule would be subject to a filibuster unless 60 senators consent to proceed.

Second, the CRA allegedly violates the right to due process and, third, the right to equal protection under the law. Again, operating in tandem with the cloture rule, the plaintiffs argued that having two separate vote thresholds in the Senate means people with “complex problems” solved through agency rulemaking are treated differently than people with “simpler problems” that Congress could address with legislation.

Initially, U.S. District Court Judge Raymond P. Moore rejected those attacks on the CRA’s constitutionality.

“The Court’s role is not to consider the wisdom or utility of the statute,” he wrote in August 2021. “The CRA simply allows the Senate to operate differently in different scenarios – when federal agencies propose new rules and when its own members propose new laws.”

Moore added that Congress could not violate the separation-of-powers principle because it was the entity that gave executive agencies their rulemaking power in the first place.

The plaintiffs appealed, and the government asked the 10th Circuit to uphold Moore’s decision. 

“No court has adopted plaintiffs’ unprecedented theories, and this Court should not be the first,” wrote attorneys for the U.S. Department of Justice.

During oral arguments in September, the 10th Circuit panel was skeptical of the notion that Congress oversteps its legal authority whenever it disapproves a rule.

“Congress delegated to administrative agencies to regulate. Why is it a separation-of-powers violation for Congress to decide it wants to bound the circumstances under which an agency can regulate and the things they do regulate?” asked Chief Judge Jerome A. Holmes. “It seems to me that what Congress is doing is saying, ‘You, agencies out there, are legislating too much and I don’t like the fact that you’re doing that. So I’m going to impose boundaries on what you can do.'”

Hartz pressed the plaintiffs’ attorney to describe how the CRA, in combination with the cloture rule, treated people with “complex” problems differently than people with “simpler” problems.

“Which group do I belong to?” he asked.

“As soon as you face a regulation, we will know which group you belong to,” responded Jared S. Pettinato.

“Really? Let’s take your regulation here. Which group do I belong to?” Hartz demanded.

Pettinato conceded that everyone, at different times, can be in either category depending on the regulation. Consequently, the panel found the plaintiffs had not shown the existence of a clear class of people the CRA discriminates against based on protected traits like race or sex.

“An environmentalist may be happy with one environmental regulation and distressed by another,” Hartz wrote. “The ‘class of persons’ discriminated against by the CRA will vary depending on what particular regulation is up for consideration by Congress.”

Finally, the 10th Circuit concluded the plaintiffs lacked standing to challenge the Senate’s cloture rule.

“The prerogative to change the Senate’s rules of debate belongs to the Senate alone,” Hartz added.

Pettinato said the appellate panel did not explicitly dispute his contention that the Senate’s supermajority requirement is unconstitutional, and he is exploring how to move forward in the case.

“Ultimately, the Senate’s two voting thresholds violate the separation of powers inherent in our constitutional structure and require declaring the filibuster unconstitutional and stopping the King II Mine,” Pettinato said. 

A trio of faculty members from The George Washington University found in 2021 that since the enactment of the CRA, Republicans had introduced three-quarters of all disapproval resolutions. Although lawmakers introduce resolutions even with the likelihood of a presidential veto, nearly half of Republicans’ historical disapproval resolutions came in the first two years of the Trump administration, when Republicans controlled both the executive and legislative branches.

The case is Citizens for Constitutional Integrity et al. v. United States et al.