On May 9, the U.S. District Court for the District of Alaska dismissed a challenge the constitutionality of the Congressional Review Act (CRA); the case is Center for Biological Diversity v. Zinke. While the District Court ruled that, while CBD had sufficient standing to make some of its arguments regarding the CRA, on the whole, it found that the constitutional and statutory arguments were inadequate to withstand the Government’s motion to dismiss.

The CRA was enacted in 1996 and authorizes Congress to review new federal regulations by means of an expedited legislative process through the passage by both houses of Congress of a Joint Resolution disapproving the regulation under review. Until recently, the CRA had been used very sparingly to exert additional Congressional control over federal agencies and departments. With the advent of the 115th Congress, the CRA has now been used at least 16 times to register Congress’ disapproval of controversial new federal regulations.

In this instance, the Center for Biological Diversity (CBD) filed a lawsuit to challenge the use of the CRA’s procedures to invalidate a 2016 rule of the Department of the Interior which prohibited certain hunting and fishing practices on National Wildlife Refuges in Alaska. Public Law 115-20, enacted on April 3, 2107, rejected this rule, prompting the CBD to file a constitutional challenge. The CBD argued that this legislation and the CRA transgressed the Constitution’s separations of powers, in particular Article I’s requirements of bicameralism and Article II’s “Take Care“ Clause.

One specific argument made by the CBD was that Congress, to properly exercise its powers under the CRA, was also obliged to amend the underlying statutory basis that grants the Department of the Interior the authority to manage National Wildlife Refuges in Alaska. Unpersuaded by this contention, the District Court held that the CBD failed to state a “plausible clam for relief.” With respect to its argument that Public Law 115-20 also violated the Administrative Procedure Act, the District Court observed that this argument had salience only if the CRA was itself unconstitutional, and this was not demonstrated.