Congressional Review Act--Is it Constitutional?

Question

Senate Majority Leader Mitch McConnell recently invoked this law Washington Examiner:

Senate Majority Leader Mitch McConnell, R-Ky., is vowing to reverse the Obama administration’s final stream-protection rule, a regulation released Monday aimed at trying to protect water resources from coal and other surface mining contamination.

McConnell on Monday said he plans to use a little-known law called the Congressional Review Act to introduce a resolution of disapproval next month to “overturn this egregious regulation and work with my colleagues to use every tool available to turn back this regulatory assault on coal country. “The president’s eight-year war on coal has wrecked the lifeblood of the economy and the livelihoods of coal country workers and their families,” McConnell said.

The little used procedure (it's only been successfully used once Wiki) McConnell is referring to is the Congressional Review Act, introduced back during the Clinton era as part of the Contract With America. It was put forward as a tool to protect small businesses from onerous government regulations which they would generally lack the resources to fight. It is employed by getting a joint resolution from both the House and the Senate which defines a particular rule enacted by an executive branch agency and essentially invalidates it. It's subject to veto, and to veto-overrides.

Has this Public Law ever been challenged in the courts? Are there any Non-Delegation doctrine or separation of power arguments for or against the constitutionality of this act?

I bring up the Non-delegation doctrine precisely because of the following thought experiment. Say Congress does delegate part of it's legislative authority to an agency through an ill-conceived law (or the agency usurps such authority). The remedy should not be just to revoke certain effects of that law through the CRA, i.e. administrative rules, but to correct the usurpation by re-writing and re-passing new, corrective legislation that clarifies the matter.

The separation of powers argument seems more clear. Of course, Congress has a role to play in executive oversight, including setting the budget for enacted legislation. However, having an effective veto-like instrument over executive activity has ramifications beyond such a traditional role. Is there a Constitutional test that preserves legitimate oversight with executive discretion?

Answer 1

The non-delegation doctrine works the opposite way: it restricts how much power Congress can give to the executive, not how much power Congress can take for itself. Congress has the sole legislative power of the United States. While it allows executive agencies to make many substantive policy decisions and pass binding regulations, non-delegation means that Congress has to ultimately be responsible for legislative actions. Congress can only delegate authority if it gives executive agencies an intelligible principle to guide their regulatory actions.

The CRA supports this goal. While Congress cannot allow one house to override an agency decision (INS v. Chadha), it is entirely proper for it to pass laws specifying exactly what it meant when it gave an agency its mission. Unless an agency's regulations are based on inherent constitutional executive authority, Congress is supposed to be able to overrule them. In some fields (particularly foreign relations and national security), there is a lot of inherent executive power. But if a regulation is based on an act of Congress, the agency is required to be acting within the parameters of Congressional intent. The courts will uphold any reasonable interpretation of that intent, but Congress can pass a law saying "we didn't mean that" and the executive agency must obey. US law is littered with things saying "this section shall not be interpreted to mean XYZ."

The Congressional Review Act's main effect is to modify procedures. It provides for expedited consideration of the joint resolution and delays the rule for 60 days. Congress can control administrative procedure, and Congress can control its own legislative procedures. But this is exactly the sort of thing that is an allowable way for Congress to oversee the executive branch.

Answer 2

Specific in the act are explicit prohibitions that prevent legislative over-reach including: CRS-10 year review of CRA

Section 804(3)(B) and (C) as a rule relating to “agency management” or “agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties are exempt.

Further the CRA has case law to further protect the President and his directives to executive agencies. (So it's been litigated, and found to be Constitutional--same source).

The GAO opinion on the American Heritage River Initiative rests its rationale that a presidential directive to an agency that results in substantive action by that agency is not thereby covered by the CRA based on the Supreme Court’s rulings in Franklin v. Massachusetts, 505 U.S. 788, 800 (1992) and Dalton v. Spector, 511 U.S. 462, 469 (1994).

However, further legislation circumscribed absolute presidential directives (same source) to be exempt

In light of Chamber of Commerce v. Reich, 74 F. 3d 1322 (D.C. Cir. 1996) and National Family Planning v. Sullivan, 979 F. 2d 227 (1992), which successfully challenged substantive changes in rules that were directed by a presidential directive, the GAO General Counsel’s conclusions may be questioned (by Congress).