The Congressional Review Act of 1996 may be an effective tool for rolling back recent federal regulations implementing President Obama’s policy initiatives. But it is limited. It applies only to very recent rules. It requires action by both houses of Congress and the President’s signature. It is strongly limited by political factors. In the 21 years since it was adopted, it has been used only once.

Congress is seeking stronger weapons. H.R. 5, the “Regulatory Accountability Act of 2017,” represents a substantial rewrite of the existing Administrative Procedure Act. H.R. 5 includes provisions that would allow courts to review agency rules on a “de novo” basis, without any deference to the agency’s interpretation of Constitutional or statutory requirements and other regulations.

H.R. 26, “Regulations from the Executive in Need of Scrutiny Act of 2017,” introduces a new mechanism for Congressional review of a broad category of Federal agency regulatory actions defined as “major rules.” Basically, the mechanism in H.R. 26 is designed to prevent a broad class of actions by Executive Branch agencies and independent regulatory agencies from becoming effective without a Joint Resolution of approval passed by Congress and signed by the President within a narrowly prescribed period (70 legislative days).

Even if these bills get through Congress and are signed by President Trump, they will likely face challenges in the Supreme Court. H.R. 26 in particular faces an uphill climb. For the reasons discussed in this article, the Joint Resolution mechanism in H.R. 26 suffers from the same Constitutional infirmities as the “one-House veto” that was popular in the 1970s but declared unconstitutional in INS v. Chadha, 462 U.S. 919 (1983).

The Chadha decision

The Supreme Court’s decision in Chadha invalidated Section 244(c)(2) of the Immigration and Nationality Act, which authorized one House of Congress, by resolution, to invalidate a decision of the Immigration and Naturalization Service and the Attorney General to suspend the deportation of a deportable alien.

The facts of the case are simple. INS granted Chadha’s application for suspension of deportation. The Attorney General reported the suspension to Congress. The House of Representatives vetoed the decision. The INS implemented the House resolution by deporting Chadha. Chadha then challenged the validity of the House action on constitutional grounds.

The Supreme Court held that the one-House veto provision violated the principle of separation of powers set forth in Article 1 of the U.S. Constitution.

The Supreme Court’s rationale for invalidating the one-House veto was based on the Presentment Clauses, Article I, § 7, cls. 2, 3, and the Bicameral Requirement, Article I, § 1, and § 7, cl. 2. The Court concluded that Congress must conform to Article I’s separation of powers requirement whenever it takes action that is “essentially legislative in purpose and effect.” 462 U.S. at 952. In the Court’s words:

The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial, to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility. Id. at 951.

The Court determined that the Section 244(c)(2) veto was legislative because of the “character of the congressional action it supplants.” Id. at 952. The only way in which Congress could reach the result that the one-House veto effected was through legislation:

Disagreement with the Attorney General’s decision on Chadha’s deportation—that is, Congress’ decision to deport Chadha—no less than Congress’ original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; [sic] bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked. Id. at 954-55.

The Court further reasoned that “[t]o accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution’s prescription for legislative action: passage by a majority of both Houses and presentment to the President.” Id. at 958. The Court recognized that the “express constitutional exceptions authorizing one House to act alone” are only available for impeachment proceedings, review of Presidential appointments, and ratification of treaties negotiated by the President. Id. at 955. Action by one House of Congress that does not fall within one of these narrow categories is a “convenient shortcut” that results in impermissible “sharing” of Executive power by Congress. Id. at 958.

Later efforts to implement a two-House Congressional veto

Following Chadha, a “two-House veto” mechanism, implemented through a Joint Resolution procedure (subject to signature or veto by the President), briefly came into legislative vogue. See, e.g., Energy Policy and Conservation Act of 1975, Pub. L. 94–163, 89 Stat. 871 (enacted December 22, 1975). The two-House veto provision in EPCA was used as a mechanism for Congress to disapprove “Energy Actions” pursuant to which the President was authorized to propose oil deregulatory measures and other actions. The 1996 Congressional Review Act is another example of the two-House veto approach. For a variety of reasons, the two-House veto approach has proven ineffective in providing Congress with a meaningful ability to reverse agency rules.

Constitutional infirmities in H.R. 26

The “Joint Resolution” concept in H.R. 26 appears to have been intended to overcome the constitutional impediments of the one-House veto. The significant difference between the procedures adopted in the aftermath of Chadha and the approach in H.R. 26 is that the earlier mechanisms used a Joint Resolution of disapproval. H.R. 26 proposes a Joint Resolution of approval.

This difference is fundamental. Ultimately, it means that the mechanism in H.R. 26 is subject to the same constitutional infirmity as the one-House veto.

It can hardly be contested that the Joint Resolution of approval mechanism found in H.R. 26 is “essentially legislative in purpose and effect.” Indeed, that is the very nature of the Joint Resolution.

From a constitutional perspective, the problem with the Joint Resolution of approval mechanism is that the failure of either House to pass the Joint Resolution results in the same consequence as a one-House veto. The Supreme Court’s rationale in Chadha requires the conclusion that the procedure in H.R. 26 violates Article I of the Constitution. It interferes with the executive branch’s authority without following the procedures established in the Constitution for achieving that result—bicameral enactment and presentation to the President for signature or veto.

H.R. 26 is subject to further challenge as to applies to rules adopted by an independent regulatory agency. As defined in 44 U.S.C. § 3502(5), the term “independent regulatory agency” includes commissions, such as the FTC, FERC, SEC, OSHA, NLRB, etc., and other regulatory bodies, the head of which does not serve at the President’s pleasure, and over which the President does not exercise direct or indirect approval of regulatory actions. Historically, many of these agencies have been viewed as extensions of Congress due to the broad delegation of “legislative” functions.

Under the Joint Resolution of approval mechanism in H.R. 26, the President’s failure to sign a Joint Resolution of approval could cause an otherwise final rule adopted by such an independent agency to be vetoed. That could be seen as an impermissible executive infringement on the legislative branch. At a minimum, it would encroach on the traditional independence of the regulatory bodies themselves. Whether that arises to a constitutional infirmity is an open question, but it certainly would raise political issues.

Severability

One additional aspect of the constitutionality issue should be considered. That is the question whether a finding that the Joint Resolution of approval mechanism is unconstitutional would be severable, allowing the remainder of the legislation to remain in place, or would result in voiding of the entire act. This question is largely one of Congressional intent:

The unconstitutionality of a part of an act does not necessarily defeat or affect the validity of its remaining provisions. Unless it is evident that the Legislature would not have enacted those provisions which are within its power, dependently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Champlin Refining Co. v. Corporation Comm’n, 286 U.S. 210, 234 (1932).

An invalid statutory provision is not clearly severable if it is “evident” that Congress would not have enacted the act but for inclusion of the invalid provision. Buckley v. Valeo, 424 U.S. 1, 108 (1976) (citing Champlin). Such a finding could well be made with respect to H.R. 26.

The severability question may indeed be the explanation for why the Congressional review procedures were separated from the broader regulatory reform legislation in H.R. 5. The separation of these conceptually related measures into two bills may be an implicit recognition of the constitutional challenges facing H.R. 26 and of a desire to insulate the regulatory reform measures in H.R. 5 from the risks of the constitutional challenge facing H.R. 26.