Citizens for Constitutional v. United States ( 2023 )

Appellate Case: 21-1317 Document: 010110795646 Date Filed: 01/10/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 10, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
CITIZENS FOR CONSTITUTIONAL
INTEGRITY; SOUTHWEST
ADVOCATES, INC.,
Plaintiffs - Appellants,
No. 21-1317
v.
UNITED STATES OF AMERICA; THE
OFFICE OF SURFACE MINING
RECLAMATION AND
ENFORCEMENT; DEBRA HAALAND,
in her official capacity as Secretary of the
Department of the Interior; GLENDA
OWENS, in her official capacity as Acting
Director of the Office of Surface Mining
Reclamation and Enforcement; KATE
MACGREGOR, in her official capacity as
Acting Assistant Secretary for Land and
Minerals Management,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:20-CV-03668-RM-STV)
_________________________________
Jared S. Pettinato, The Pettinato Firm, Washington, D.C., for Plaintiffs - Appellants.
Martin Totaro, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice (Brian
M. Boynton, Acting Assistant Attorney General, Cole Finegan, U.S. Attorney, Michael S.
Raab and Benjamin M. Shultz, Attorneys, Appellate Staff, Civil Division, with him on the
brief), Washington, D.C., for Defendants - Appellees.
_________________________________
Appellate Case: 21-1317 Document: 010110795646 Date Filed: 01/10/2023 Page: 2
Before HOLMES, Chief Judge, MURPHY, and HARTZ, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
Plaintiffs Citizens for Constitutional Integrity and Southwest Advocates, Inc.
appeal the rejection of their challenges to the constitutionality of the Congressional
Review Act, 5 U.S.C. §§ 801–08 (the CRA or the Act), and Senate Rule XXII, the so-
called Cloture Rule, which requires the votes of three-fifths of the Senate to halt debate.
We reject their challenges to the CRA and hold that they lack standing to challenge the
Cloture Rule.
The CRA was enacted in 1996 to enhance congressional oversight of executive
rulemaking. Among other things, it creates an expedited process through which
Congress can repeal rules promulgated by federal agencies. Under the Act a rule “shall
not take effect (or continue), if the Congress enacts a joint resolution of disapproval,
described under section 802, of the rule.” 5 U.S.C. § 801(b)(1). (A joint resolution is
effectively the same as a bill except in the context of proposing constitutional
amendments. 1) After it is passed by Congress, a joint resolution of disapproval must
1
“Congress legislates through ‘acts’ and ‘joint resolutions.’ Resolutions are
recognized in the Constitution, and a joint resolution is a bill within the meaning of the
congressional rules and the processes of the Congress. With the exception of joint
resolutions proposing amendments to the Constitution, all such resolutions are sent to
the President for approval and have the full force of law.” Int’l Bhd. of Elec. Workers
v. Wash. Terminal Co., 473 F.2d 1156, 1163 (D.C. Cir. 1972); accord Nuclear Energy
Inst., Inc. v. EPA, 373 F.3d 1251, 1301, 1309 (D.C. Cir. 2004) (per curiam) (“There is
no question that [a joint] [r]esolution is a law, enacted in accordance with the
bicameralism and presentment requirements of Article I, section 7, clause 3 of the
Constitution.”); United States v. Powell, 761 F.2d 1227, 1235 (8th Cir. 1985) (en banc)
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then go to the President for approval; a presidential veto can be overridden in the
manner typical of all legislation. See id. § 801(a)(3)(B)(i) (recognizing Congress’s
authority to override a presidential veto of a joint resolution of disapproval). A rule
subjected to a joint resolution of disapproval “may not be reissued in substantially the
same form, and a new rule that is substantially the same as such a rule may not be
issued, unless the reissued or new rule is specifically authorized by a law enacted after
the date of the joint resolution disapproving the original rule.” Id. § 801(b)(2). The Act
applies only to recently adopted regulations. Congress generally has 60 days from
when a final rule is reported to Congress 2 to enact a joint resolution of disapproval.
See id. § 802(a). But a rule reported to Congress within 60 days of the end of a session
of Congress is treated as if it were published on “the 15th session day” (in the Senate)
or “the 15th legislative day” (in the House) “after the succeeding session of Congress
first convenes,” id. § 801(d)(1)–(2)(A), 3 thus providing Congress with an extended
(“The fact that the words at the top of the first page of a law are ‘a bill’ instead of ‘a
joint resolution’ is of significance only for internal congressional purposes. A joint
resolution, once signed by the President, is every bit as much of a law as a bill similarly
signed.”). And “like all other statutes,” a joint resolution “is subject to the President’s
veto.” Nat’l Fed’n of Fed. Emps. v. United States, 905 F.2d 400, 404 (D.C. Cir. 1990).
2
“Before a rule can take effect, the Federal agency promulgating such rule shall
submit to each House of the Congress and to the Comptroller General a report
containing—(i) a copy of the rule; (ii) a concise general statement relating to the rule,
including whether it is a major rule; and (iii) the proposed effective date of the rule.”
5 U.S.C. § 801(a)(1)(A).
3
Because the 60 days does not include “days either House of Congress is
adjourned for more than 3 days during a session of Congress,” id. § 802(a), the new
session may be able to consider regulations promulgated many months before the end
of the prior session. See Anne Joseph O’Connell, Agency Rulemaking and Political
Transitions, 105 Nw. U. L. Rev. 471, 531 (2011) (“[A]ccording to the Congressional
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opportunity to repeal so-called “midnight regulations” promulgated by an outgoing
administration.
Once a proposed CRA resolution is “referred to the committees in each House
of Congress with jurisdiction,” id. § 802(b)(1), the Senate’s consideration of the
resolution is expedited in several ways. If the committee to which a joint resolution of
disapproval has been referred “has not reported such joint resolution (or an identical
joint resolution) at the end of 20 calendar days after” the rule’s publication, a petition
signed by 30 Senators can force the discharge of the resolution from the committee,
“and such joint resolution shall be placed on the calendar,” id. § 802(c); in contrast,
for most other legislation, there is “no specific provision in the standing rules of the
Senate providing for a definite procedure for the discharge of its committees from
further consideration of the matters referred to them.” Floyd M. Riddick & Alan S.
Frumin, Riddick’s Senate Procedure: Precedents and Practices, S. Doc. No. 101-28,
at 802 (Alan S. Frumin ed., rev. ed. 1992). Once a joint resolution of disapproval is
reported by (or discharged from) a committee, “it is at any time thereafter in order . . .
for a motion to proceed to the consideration of the joint resolution, and all points of
order against the joint resolution (and against consideration of the joint resolution) are
waived. The motion is not subject to amendment, or to a motion to postpone, or to a
motion to proceed to the consideration of other business.” 5 U.S.C. § 802(d)(1). If the
motion to proceed is approved, “the joint resolution shall remain the unfinished
Research Service, any final rule submitted to Congress after May 14, 2008, likely could
have been repealed by the new Congress under the CRA.”).
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business of the Senate until disposed of.” Id. Senate debate on a joint resolution of
disapproval is “limited to not more than 10 hours,” id. § 802(d)(2), thereby overriding
the Cloture Rule, which provides that the question whether to end debate “shall be
decided in the affirmative by three-fifths of the Senators duly chosen and sworn.” To
date, the CRA has been used to overturn 20 rules, with the “vast majority” of
disapprovals coming during the first months of a new presidential administration.
Maeve P. Carey & Christopher M. Davis, Cong. Rsch. Serv., R43992, The
Congressional Review Act (CRA): Frequently Asked Questions 6 (2021),
https://sgp.fas.org/crs/misc/R43992.pdf.
One such rule was the Stream Protection Rule, 81 Fed. Reg. 93,066 (Dec. 20,
2016) (the Rule), promulgated by the Department of the Interior’s Office of Surface
Mining Reclamation and Enforcement (the Office) in the waning days of the Obama
Administration. Within a month of the Stream Protection Rule taking effect on
January 19, 2017, both Houses of Congress had passed a joint resolution disapproving
the Rule, and President Trump had signed the joint resolution into law. See 163 Cong.
Rec. H859 (daily ed. Feb. 1, 2017) (passing H.J. Res. 38); id. at S632 (daily ed. Feb. 2,
2017) (same, by a margin of 54–45, with one Senator not voting); Act of Feb. 16, 2017,
Pub. L. No. 115–5, 131 Stat. 10.
The Stream Protection Rule, which the Office issued using authority granted to
it by the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et
seq., heightened the requirements for regulatory approval of mining-permit
applications. See Stream Protection Rule, 81 Fed. Reg. at 93,068–69 (overview of the
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Rule’s seven major components). According to Plaintiffs, the repeal of the Rule
enabled the approval of a 950.55-acre expansion of the King II Coal Mine (the Mine),
located in La Plata County, Colorado, and owned by GCC Energy. 4 The Office (jointly
with the Bureau of Land Management) released an environmental assessment
regarding the projected effects of the Mine’s expansion. Relying on that assessment,
the Department of the Interior approved the Mine’s expansion on March 27, 2018.
On December 15, 2020, Plaintiffs filed suit in the United States District Court
for the District of Colorado against the federal government and several high-ranking
Department of the Interior officials in their official capacities (collectively,
Defendants). They sought (1) a declaration that the CRA and the Cloture Rule are
unconstitutional and that the Stream Protection Rule is therefore valid and enforceable;
(2) vacation of the approval of the King II Mine permit modification and an injunction
against expanded mining activities authorized by the modification; and (3) attorney
fees. On August 30, 2021, the district court granted Defendants’ motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. See Citizens
4
The federal government has regulatory responsibility for the Mine. Although
Colorado has primary authority to regulate “surface coal mining and reclamation
operations . . . on non-Federal and non-Indian lands” within its borders, 30 C.F.R.
§ 906.10, most of the land for both the preexisting Mine and the area added by the
expansion is “‘split-estate’ land[] where the federal government has retained ownership
of the subsurface coal (and other minerals), but has disposed of the surface estate. The
Ute Mountain Ute (UMU) Tribe owns much of the split-estate surface in this area.”
Aplts. App., Vol. I at 31. “While the split-estate surface owned by the UMU Tribe is
not within a designated Indian Reservation, it does meet the definition of ‘Indian
Lands’ as defined by the [Surface Mining Control and Reclamation Act],” so the Office
is “the primary regulator of coal mining operations” for those lands. Id.6
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for Const. Integrity v. United States, No. 20-cv-3668-RM-STV, 2021 WL 4241336, at
*1 (D. Colo. Aug. 30, 2021). Plaintiffs timely appealed. We review de novo the district
court’s grant of the motion to dismiss. See Brooks v. Mentor Worldwide LLC, 985 F.3d
1272, 1278 (10th Cir. 2021).
On appeal Plaintiffs assert that the CRA is facially unconstitutional on
separation-of-powers, equal-protection, and substantive-due-process grounds, so the
joint resolution disapproving the Stream Protection Rule was invalid, the Rule must be
reinstated, and the approval of the Mine’s expansion must be vacated. We disagree.
The procedures instituted by the CRA—which Congress enacted “as an exercise of the
rulemaking power of the Senate and House of Representatives, respectively,” 5 U.S.C.
§ 802(g)(1)—are fully compatible with the provisions of the United States Constitution
governing how Congress can pass laws; and the CRA survives Plaintiffs’ other
constitutional challenges. Plaintiffs raise similar challenges with respect to the Cloture
Rule, but they lack standing to pursue the matter. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm the dismissal by the district court. Before addressing the
merits, we explore our jurisdiction to hear the appeal.
I. JURISDICTION
“To reach the merits of a case, an Article III court must have jurisdiction.” Va.
House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1950 (2019). We have an
“independent obligation” to assure ourselves of our subject-matter jurisdiction “even
in the absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 500,
514 (2006).
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A. Appellate Jurisdiction
In district court this case was consolidated with a second one under Federal Rule
of Civil Procedure 42(a)(2), but this case was appealed separately. We sua sponte asked
the parties to “address with particularity in their merits briefs the jurisdictional issue
of finality with respect to the appeal of an apparently final decision applicable to only
one of the two consolidated cases.” Order, Citizens for Const. Integrity v. United
States, No. 21-1317 (10th Cir. Sept. 30, 2021). All responded that each case retained
its separate identity and that the district court’s dismissal of this case was a final
decision for purposes of appeal under 28 U.S.C. § 1291, even though the second case
remained pending at the time. We agree. The Supreme Court has recently stated that
“one of multiple cases consolidated under [Rule 42(a)(2)] retains its independent
character, at least to the extent it is appealable and finally resolved, regardless of any
ongoing proceedings in the other cases.” Hall v. Hall, 138 S. Ct. 1118, 1125 (2018).
Thus, “when one of several consolidated cases is finally decided, a disappointed
litigant is free to seek review of that decision in the court of appeals.” Id. at 1131. That
is what happened here.
B. Statutory Jurisdiction
Although not mentioned by the parties, there is also a potential restriction on
our statutory jurisdiction to hear this case. The CRA contains a jurisdiction-stripping
provision: “No determination, finding, action, or omission under this chapter shall be
subject to judicial review.” 5 U.S.C. § 805. “‘Under this chapter’ refers to duties the
CRA imposes on various actors, whether those duties take the form of determinations,
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findings, actions, or omissions.” Kan. Nat. Res. Coal. v. U.S. Dep’t of Interior, 971
F.3d 1222, 1235 (10th Cir. 2020) (court lacks jurisdiction to determine whether agency
rule is invalid because agency failed to submit the rule to Congress as required by the
CRA). The joint resolution disapproving the Stream Protection Rule was an “action
under this chapter” within the meaning of § 805, because the CRA’s special procedures
facilitated its passage through Congress. Hence, § 805, read literally, deprives this
court of jurisdiction here. See Ctr. for Biological Diversity v. Bernhardt, 946 F.3d 553,
561 (9th Cir. 2019) (jurisdiction-stripping provision of CRA “[o]n its face . . . bars
judicial review of all challenges to actions under the CRA”).
Nevertheless, the federal courts are reluctant to cede their power to enforce the
Constitution absent an unambiguous congressional command. “[W]here Congress
intends to preclude judicial review of constitutional claims its intent to do so must be
clear.” Webster v. Doe, 486 U.S. 592, 603 (1988); accord Cmty. Action of Laramie
Cnty., Inc. v. Bowen, 866 F.2d 347, 352–53 (10th Cir. 1989) (“[J]udicial review of
colorable constitutional claims remains available unless Congress has made its intent
to preclude review crystal clear.”). The Supreme Court requires “this heightened
showing in part to avoid the serious constitutional question that would arise if a federal
statute were construed to deny any judicial forum for a colorable constitutional claim.”
Webster, 486 U.S. at 603 (internal quotation marks omitted).
Section 805 does not meet this clear-statement requirement. It is not enough just
to bar judicial review in general, as the Supreme Court has repeatedly ruled when
holding that such a general bar does not preclude the courts from entertaining
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constitutional challenges. See, e.g., Demore v. Kim, 538 U.S. 510, 516–17 (2003)
(immigration statute providing that “[n]o court may set aside any action or decision by
the Attorney General under this section regarding the detention or release of any alien
or the grant, revocation, or denial of bond or parole” did not bar habeas corpus action
challenging the constitutionality of legislation requiring plaintiff’s detention without
bail); INS v. St. Cyr, 533 U.S. 289, 314 (2001) (neither the Antiterrorism and Effective
Death Penalty Act of 1996 nor the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 deprived federal courts of jurisdiction over an alien’s
application for habeas relief under 28 U.S.C. § 2241; the absence of “another judicial
forum” for such claims, “coupled with the lack of a clear, unambiguous, and express
statement of congressional intent to preclude judicial consideration on habeas of such
an important question of law, strongly counsel[ed] against adopting a construction that
would raise serious constitutional questions”), superseded by statute in part as
recognized by Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020) (in the REAL ID Act
of 2005, Congress “responded to” St. Cyr and “clarified that final orders of removal
may not be reviewed in district courts, even via habeas corpus, and may be reviewed
only in the courts of appeals”); Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S.
667, 678–81, 681 n.12 (1986) (statute providing that “[n]o action against the United
States, the Secretary [of Health and Human Services], or any officer or employee
thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claim
arising under this subchapter” did not bar statutory or constitutional challenges to
regulations promulgated by the Secretary; this “disposition avoid[ed] the serious
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constitutional question that would arise” if the Court had held that there was no
“judicial forum for constitutional claims arising under Part B of the Medicare program”
(internal quotation marks omitted)); Johnson v. Robison, 415 U.S. 361, 365 n.5, 366–
74 (1974) (statute providing that the decisions of the Administrator of Veterans Affairs
“on any question of law or fact under any law . . . providing benefits for veterans . . .
shall be final and conclusive and no . . . court of the United States shall have power or
jurisdiction to review any such decision by an action in the nature of mandamus or
otherwise” did not bar constitutional challenges brought by conscientious objector); cf.
Webster, 486 U.S. at 594, 599–605 (statute providing that the CIA director “may, in
his discretion, terminate the employment of any officer or employee of the Agency
whenever he shall deem such termination necessary or advisable in the interests of the
United States” barred Administrative Procedure Act challenges to individual employee
discharges, but did not bar constitutional due-process, equal-protection, and privacy
claims).
We agree with the Ninth Circuit that because § 805 “does not include any
explicit language barring judicial review of constitutional claims” relating to the CRA,
“we presume that Congress did not intend to bar such review.” Ctr. for Biological
Diversity, 946 F.3d at 561; see Kan. Nat. Res. Coal., 971 F.3d at 1237 (citing Center
for Biological Diversity with approval on this point). Plaintiffs exclusively bring
constitutional claims, so we have statutory jurisdiction to hear this case.
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C. Standing
Under Article III, § 2 of the Constitution the federal courts have jurisdiction
only over cases and controversies. “One element of the case-or-controversy
requirement is that [plaintiffs], based on their complaint, must establish that they have
standing to sue.” Raines v. Byrd, 521 U.S. 811, 818 (1997). “[T]he irreducible
constitutional minimum of standing contains three elements.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992). “First, the plaintiff must have suffered an injury in
fact—an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id.(internal quotation marks omitted). “Second, there must be a causal connection
between the injury and the conduct complained of—the injury has to be fairly traceable
to the challenged action of the defendant, and not the result of the independent action
of some third party not before the court.” Id. (brackets, ellipses, and internal quotation
marks omitted). “Third, it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Id. at 561 (internal quotation marks
omitted). “Where, as here, a case is at the pleading stage, the plaintiff must clearly
allege facts demonstrating each element” of standing. Spokeo v. Robins, 578 U.S. 330,
338 (2016) (ellipsis and internal quotation marks omitted).
An organization has standing to sue on behalf of its members if “(a) [at least one
of] its members would otherwise have standing to sue in [her] own right; (b) the
interests it seeks to protect are germane to the organization’s purpose; and (c) neither
the claim asserted nor the relief requested requires the participation of individual
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members in the lawsuit.” Diné Citizens Against Ruining Our Env’t v. Bernhardt, 923
F.3d 831, 840 (10th Cir. 2019) (internal quotation marks omitted); see also Utah Ass’n
of Cntys. v. Bush, 455 F.3d 1094, 1099 (10th Cir. 2006) (one member with standing is
sufficient). If one appellant has standing, we need not worry about the standing of
another appellant raising the same issues and seeking the same relief. See Town of
Chester v. Laroe Ests., Inc., 581 U.S. 433, 439 (2017); Rumsfeld v. Forum for Acad.
& Inst. Rts., Inc., 547 U.S. 47, 52 n.2 (2006). We first address standing to challenge
the CRA.
1. Standing to Challenge the CRA
In our view, Southwest Advocates may bring its challenge to the
constitutionality of the CRA. With respect to the requirements of organizational
standing, “the second and third conditions are unquestionably satisfied here” because
“protecting the environment is a core purpose of [Southwest Advocates] and the relief
it seeks does not require the participation of individual members.” Utah Physicians for
a Healthy Env’t v. Diesel Power Gear, LLC, 21 F.4th 1229, 1241 (10th Cir. 2021).
Therefore, we need decide only whether a member of the organization has standing in
her own right. We conclude that member Julia Dengel has standing.
Ms. Dengel submitted a declaration to the court, which we may properly
consider in determining jurisdictional facts. See Baker v. USD 229 Blue Valley, 979
F.3d 866, 872 (10th Cir. 2020). According to the declaration she lives on 45 acres of
land south of Hesperus, Colorado, not far from the Mine. She takes daily walks through
her neighborhood, during which she encounters many different species of plants and
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animals. She fears that an expanded Mine “will divert more water from the La Plata
River,” thereby reducing the amount of wildlife “living near [her] or migrating
through.” Aplts. App., Vol. II at 176. Ms. Dengel has a well on her property whose
water derives from a coal seam and currently is consumable only by the horses that she
boards. She worries that expanding the Mine would cause “contaminants” to seep “into
the source of [her] well water,” thereby making the water undrinkable even by horses—
with the consequence that “boarding or owning horses on [her] own land [would
become] untenable.” Id.First, the harms that concern Ms. Dengel constitute bona fide injuries in fact.
The Supreme Court and this court have repeatedly “held that environmental plaintiffs
adequately allege injury in fact when they aver that they use the affected area and are
persons for whom the aesthetic and recreational values of the area will be lessened by
the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,
528 U.S. 167, 183 (2000) (internal quotation marks omitted); see also, e.g., Rocky
Mountain Peace & Just. Ctr. v. U.S. Fish & Wildlife Serv., 40 F.4th 1133, 1152 (10th
Cir. 2022); Utah Physicians, 21 F.4th at 1241; Diné Citizens, 923 F.3d at 841;
WildEarth Guardians v. U.S. BLM, 870 F.3d 1222, 1231 (10th Cir. 2017). “[O]nce an
interest has been identified as a ‘judicially cognizable interest’ in one case, it is such
an interest in other cases as well (although there may be other grounds for granting
standing in one case but not the other).” In re Special Grand Jury 89–02, 450 F.3d
1159, 1172 (10th Cir. 2006). At this stage of the litigation, the declaration sufficiently
establishes a “substantial risk” that allowing the Mine’s expansion to proceed will
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threaten the ecosystem around her home and preclude Ms. Dengel from boarding
horses on her property. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)
(internal quotation marks omitted).
Second, the asserted injuries can be traced to Defendants because they approved
the source of her concerns, the Mine’s expansion. It does not matter that “the
environmental and health injuries claimed by [Ms. Dengel] are not directly related to
the constitutional attack on the [CRA].” Duke Power Co. v. Carolina Env’t Study Grp.,
Inc., 438 U.S. 59, 78 (1978). What matters is that, but for the CRA, Ms. Dengel’s
injuries would not befall her. See WildEarth Guardians, 870 F.3d at 1232 (“[T]he legal
theory and the standing injury need not be linked as long as redressability is met.”).
Third, Ms. Dengel has satisfactorily alleged that her injuries would “likely be
redressed by a favorable decision.” Clinton v. City of New York, 524 U.S. 417, 435
(1998). If we were to hold that the CRA is unconstitutional, the joint resolution
disapproving the Stream Protection Rule would be rendered invalid, and the resulting
resurrection of the Stream Protection Rule would stop GCC Energy from operating the
portion of the Mine located on the 950.55 acres added by the challenged permit. Cf.
INS v. Chadha, 462 U.S. 919, 936 (1983) (“If the veto provision violates the
Constitution, and is severable, the deportation order against Chadha will be cancelled.
Chadha therefore has standing to challenge the order of the Executive mandated by the
House veto.”).
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2. Standing to Challenge the Cloture Rule
On the other hand, both Plaintiffs lack standing to challenge the constitutionality
of the Cloture Rule. Southwest Advocates lacks standing because it has not adequately
alleged how the environmental harm of which it complains would be redressed by a
ruling that the Cloture Rule is unconstitutional. Even if the Cloture Rule is
unconstitutional, a decision to that effect would not reinstate the Stream Protection
Rule because the Cloture Rule was not invoked in the CRA process that disapproved
the Stream Protection Rule. The joint resolution of disapproval passed notwithstanding
the Cloture Rule, not because of it. See In re Fin. Oversight & Mgmt. Bd. for P.R., 995
F.3d 18, 22 (1st Cir. 2021) (“The problem with the plaintiffs’ contention is that none
of the relief that they seek would prevent any of the laws that they contend caused them
pecuniary harm from continuing to have full force and effect.”).
Southwest Advocates suggests that invalidation of the Cloture Rule could
redress its harm because without the Cloture Rule it might be able to obtain legislation
reinstating the Stream Protection Rule and revoking the permit for the expanded Mine.
But that possibility is too speculative. It is not enough that a favorable ruling on a claim
might just happen to redress harm. The Supreme Court has long made it clear that “it
must be likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision,” Lujan, 504 U.S. at 561 (internal quotation marks omitted;
emphasis added), and that to establish standing “pleadings must be something more
than an ingenious academic exercise in the conceivable,” Warth v. Seldin, 422 U.S.
490, 509 (1975) (internal quotation marks omitted). Where, as here, the “causal relation
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between [the] injury and [the] challenged action depends upon the decision of an
independent third party [such as Congress],” a plaintiff must plausibly allege “at the
least that [the] third part[y] will likely react in predictable ways.” California v. Texas,
141 S. Ct. 2104, 2117 (2021) (internal quotation marks omitted; emphasis added);
accord US Magnesium, LLC v. U.S. EPA, 690 F.3d 1157, 1166 (10th Cir. 2012) (“In a
case like this, in which relief for the [plaintiff] depends on actions by a third party not
before the court, the [plaintiff] must demonstrate that a favorable decision would create
a significant increase in the likelihood that the plaintiff would obtain relief that directly
redresses the injury suffered.” (internal quotation marks omitted)); cf. Skaggs v. Carle,
110 F.3d 831, 836 (D.C. Cir. 1997) (“At most the [members of the House of
Representatives challenging House Rule XXI(5)(c), which required a supermajority to
approve certain tax increases] have shown that [the Rule] could, under conceivable
circumstances, help to keep a majority from having its way—perhaps, for example,
because a simple majority in favor of an income tax increase might not be prepared,
for its own political reasons, to override the preference of the House leadership against
suspending or waiving the Rule in a particular instance. But that prospect appears to
be, if not purely hypothetical, neither actual nor imminent.”). Plaintiffs have not
alleged facts establishing that elimination of the Cloture Rule would significantly
increase the likelihood that opponents of the Mine could garner the necessary majority
in the Senate (to say nothing of a majority in the House and the support of the President)
to halt the operation of the expanded Mine.
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As for Citizens for Constitutional Integrity, it lacks standing to challenge the
Cloture Rule because it has not alleged a judicially cognizable injury in fact. The group
describes itself as “a nonprofit organization that develops and advocates for legislation,
regulations, and government programs.” Compl. ¶ 22. Its members are “citizens
holding governments accountable to their constitutions,” and it “watches for actions
that contravene our bedrock, fundamental principles, circumstances, and motivations
that drove the Founding Fathers and the people in drafting and adopting the
Constitution.” Id. Citizens for Constitutional Integrity is thus a quintessential
“concerned bystander[]” seeking “vindication of [its members’] value interests.”
Hollingsworth v. Perry, 570 U.S. 693, 707 (2013) (internal quotation marks omitted)
(rejecting standing of opponents of same-sex marriage). But “a plaintiff raising only a
generally available grievance about government—claiming only harm to his and every
citizen’s interest in proper application of the Constitution and laws, and seeking relief
that no more directly and tangibly benefits him than it does the public at large—does
not state an Article III case or controversy.” Lujan, 504 U.S. at 573–74. “The
Constitution leaves” such grievances “for resolution through the political process.”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 97 n.2 (1998).
Plaintiffs argue that a claim relating to “[t]he separation of powers requires no
evidence of harm because it is a ‘structural safeguard rather than a remedy to be
applied only when specific harm, or risk of specific harm, can be identified.’” Aplts.
Reply Br. at 17 (quoting Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239 (1995)).
But standing was not at issue in Plaut. In that case Congress had passed a law requiring
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the reinstatement of federal securities actions that had been dismissed as untimely. See
Plaut, 514 U.S. at 214–15. The Supreme Court held that the law violated the separation
of powers because it “retroactively command[ed] the federal courts to reopen final
judgments.” Id. at 219. In stating that no “specific harm” or “risk of specific harm”
was required to sustain a separation-of-powers argument, id. at 239, the Plaut Court
merely sought to clarify that the general rule adopted by the Court—that Congress
cannot set aside final judgments of the judiciary—applies regardless of whether one
can identify a specific and immediate risk of harm to the separation of powers in a
particular case. This categorical rule was justified as “a prophylactic device,
establishing high walls and clear distinctions because low walls and vague distinctions
will not be judicially defensible in the heat of interbranch conflict.” Id. at 239. The
opinion was addressing the elements of a separation-of-powers claim, not who can
bring such a claim; it says absolutely nothing about easing the requirements of standing
for separation-of-powers claims. Indeed, just two years later the Court indicated that
standing would be examined more strictly when such claims are raised. It stated that
its “standing inquiry has been especially rigorous when reaching the merits of the
dispute would force us to decide whether an action taken by one of the other two
branches of the Federal Government was unconstitutional.” Raines, 521 U.S. at 819–
20 (emphasis added); accord Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013).
Because neither Plaintiff has standing to challenge the Cloture Rule, we do not
reach the merits of Plaintiffs’ arguments that relate solely to the Cloture Rule.
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II. MERITS
Having satisfied ourselves of our jurisdiction to review Plaintiffs’ constitutional
challenges to the CRA, we now turn to the merits of those challenges. Plaintiffs argue
that on its face the CRA “violate[s] the separation of powers, equal protection, and due
process.” Aplts. Br. at 69. None of these arguments has merit.
A. Separation of Powers
Plaintiffs contend that the CRA and the Cloture Rule combine to “create a one-
way ratchet,” id. at 23, that “inexorably undermines, erodes, and chips away at Article
II Executive Power,” id. at 24–25, and therefore “violates the separation of powers,”
id. at 25. They reason that “[i]f Congress can rescind agency authorities with fifty-one
votes in the Senate, but cannot delegate new authorities or redelegate those same
authorities without sixty votes, agency authorities will inexorably decrease over time.”
Id. at 29–30. They lament that the use of the CRA to disapprove the Stream Protection
Rule “gutted [the Office’s] current rulemaking authority,” id. at 33, and they contend
that the resulting “chilling effect” will compel the Office and other agencies to
“rationally decline to implement some rules” for fear of Congress disapproving those
rules,” id. at 34. They assert that “[r]eductions in agency authorities reduce Executive
Power,” id. at 36, and that “[a]lthough Congress can define and revise agency
authorities, the separation of powers prevents Congress from impairing the Executive
Branch in the performance of its constitutional duties,” id. at 37 (internal quotation
marks omitted). In their view the CRA, and the joint resolutions of disapproval passed
through it, create such an impairment.
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We are not persuaded. Plaintiffs’ argument is based on the false premise that
Congress impermissibly treads on executive authority when it passes laws overriding
or overruling agency rules or interpretations, or when it limits the scope of past
statutory delegations. A joint resolution adopted under the CRA is authorized by the
same provisions of the Constitution that authorize all legislation. See Int’l Bhd. of Elec.
Workers, 473 F.2d at 1163 (“Resolutions are recognized in the Constitution, and a joint
resolution is a bill within the meaning of the congressional rules and the processes of
the Congress.”). If Congress disagrees with an agency rule, then Congress may pass a
law overriding it; such a course of events is not a usurpation of executive power but
instead a legitimate exercise of legislative power. Plaintiffs concede that Congress
“[u]ndoubtedly . . . could reduce Executive Power one statute at a time.” Aplts. Br. at
37. It makes no difference what internal parliamentary procedures Congress adopts in
doing so, 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). See U.S. Const. art. I, § 7. “Our task is
simply to hold the Congress within the limits of the power given it by the Constitution,
not to pass judgment on matters of legislative practice.” Powell, 761 F.2d at 1235.
To be sure, the Supreme Court has held that several novel policymaking
procedures adopted by Congress were unconstitutional as violations of the proper
separation of powers. For example, the Line Item Veto Act enabled the President to
partially repeal Acts of Congress unilaterally, contrary to the requirements of
bicameralism and presentment in the enactment of legislation. See Clinton, 524 U.S.
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at 436–49. The Immigration and Nationality Act unconstitutionally provided that one
House of Congress could override an Attorney General’s nondeportation decision. See
Chadha, 462 U.S. at 945–59. And another statute unconstitutionally subjected
decisions of a regional airport authority to a veto power held by nine members of
Congress. See Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise,
Inc., 501 U.S. 252, 265–77 (1991). Nor may Congress directly interfere with an
exclusive power of the President, such as the removal of the Comptroller General, see
Bowsher v. Synar, 478 U.S. 714, 721–27 (1986), or the recognition of foreign nations
and governments, see Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 10–32 (2015)
(statute could not require the Secretary of State, upon request, to record on the passport
of a citizen born in Jerusalem that the place of birth was Israel).
But the CRA contravenes none of these separation-of-powers prohibitions. At
oral argument Plaintiffs’ counsel conceded—correctly—that every CRA resolution,
including the one used to disapprove the Stream Protection Rule, is enacted by a
majority vote of both Houses of Congress and signed by the President, thus complying
with the “single, finely wrought and exhaustively considered, procedure,” Chadha, 462
U.S. at 951, of “bicameral passage followed by presentment to the President,” id. at
954–55. 5 And regulation of surface coal mining is not one of “[t]he Executive’s
exclusive power[s],” Zivotofsky, 576 U.S. at 30, but instead is a creature of Congress’s
5
Plaintiffs also charge that the CRA “does not satisfy Article I, Section 7,
because it allows no pocket-veto of [CRA] statutes.” Aplts. Reply Br. at 4. But
Plaintiffs have waived this argument because they did not raise it until their reply brief.
See White v. Chafin, 862 F.3d 1065, 1067 (10th Cir. 2017).
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“Power to dispose of and make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States,” U.S. Const. art. IV, § 3, cl.
2, and its “Power . . . To regulate Commerce . . . among the several States, and with
the Indian Tribes,” U.S. Const. art. I, § 8, cl. 3.
As stated by the Supreme Court, “an agency literally has no power to act . . .
unless and until Congress confers power upon it.” La. Pub. Serv. Comm’n v. FCC, 476
U.S. 355, 374 (1986). Later limitation or withdrawal of statutory grants “by duly
enacted legislation in an area where Congress has previously delegated managerial
authority is not an unconstitutional encroachment on the prerogatives of the Executive;
it is merely to reclaim the formerly delegated authority.” Biodiversity Assocs. v.
Cables, 357 F.3d 1152, 1162 (10th Cir. 2004) (emphasis omitted); see Chadha, 462
U.S. at 955 (“Congress must abide by its delegation of authority until that delegation
is legislatively altered or revoked.” (emphasis added)). The opposite is also true. If
Congress wants the Office to reinstate the Stream Protection Rule, it can simply pass
a law saying so. See 5 U.S.C. § 801(b)(2) (the CRA’s prohibition of agencies issuing
new rules that are “substantially the same” as previously disapproved rules does not
apply if “the reissued or new rule is specifically authorized by a law enacted after the
date of the joint resolution disapproving the original rule”). The CRA raises no
separation-of-powers concerns.
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B. Equal Protection
We must also reject Plaintiffs’ claim that the CRA denies equal protection. 6 A
fundamental tenet of equal-protection analysis is that a cognizable claim must identify
a class of persons disadvantaged by the government action. In other words, government
action challenged on equal-protection grounds must “affect some groups of citizens
differently than others.” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008)
(internal quotation marks omitted) (but recognizing that in the context of certain types
of government decision-making the “group” may be a class of one); see also Ross v.
Moffitt, 417 U.S. 600, 609 (1974) (equal protection “emphasizes disparity in treatment
by [the government] between classes of individuals whose situations are arguably
indistinguishable”); Missouri v. Lewis, 101 U.S. (11 Otto) 22, 31 (1879) (“[The Equal
Protection Clause] means that no person or class of persons shall be denied the same
protection of the laws which is enjoyed by other persons or other classes in the same
place and under like circumstances.”); Dalton v. Reynolds, 2 F.4th 1300, 1308 (10th
Cir. 2022) (“To assert a viable equal protection claim, a plaintiff must first make a
threshold showing that she was treated differently from others who were similarly
situated to her.” (brackets and internal quotation marks omitted)); Christy v. Hodel,
857 F.2d 1324, 1331 (9th Cir. 1988) (“In order to subject a law to any form of review
6
Although by its express language the Fourteenth Amendment’s Equal
Protection Clause applies to States rather than the federal government, the Supreme
Court has long understood the Fifth Amendment’s Due Process Clause to include an
equal-protection component. See, e.g., United States v. Windsor, 570 U.S. 744, 774
(2013); Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954).
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under the equal protection guarantee, one must be able to demonstrate that the law
classifies persons in some manner.” (brackets and internal quotation marks omitted)).
For typical equal-protection claims, it is obvious what the characteristic at issue
is, because the challenged law facially discriminates on the basis of some discernible
trait. See, e.g., Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 487–88 (1954) (race);
United States v. Virginia, 518 U.S. 515, 520 (1996) (sex); Graham v. Richardson, 403
U.S. 365, 371 (1971) (citizenship). “When a distinction between groups of persons
appears on the face of a state law or action, an intent to discriminate is presumed and
no further examination of the legislative purpose is required.” Dalton, 2 F.4th at 1308
(internal quotation marks omitted). The only questions are (1) what degree of judicial
scrutiny applies to a distinction based on this trait, and (2) whether the classification
at issue withstands such scrutiny. See Price-Cornelison v. Brooks, 524 F.3d 1103,
1109–10 (10th Cir. 2008). In other cases the challenged government action does not
explicitly or overtly treat the plaintiffs differently based on a particular characteristic.
But we may deduce the existence of the requisite discriminatory intent by examining
surrounding circumstances. See Village of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 266–68 (1977) (evidence suggesting that an “invidious
discriminatory purpose was a motivating factor” behind an official action or policy
may include disparate impact, historical background, departures from normal
procedures, and contemporary statements by policymakers).
The problem for Plaintiffs is that they cannot coherently describe a class of
discriminated-against persons to which they (or, more precisely, their members)
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belong. They declare that “[t]he Senate’s two voting thresholds create two categories
of citizens: 1. Citizens facing complex problems and protected by statutes that delegate
authorities to agencies (fifty-one votes can rescind these laws)[;] and 2. Citizens facing
simpler problems and protected by statutes directly (only sixty votes can rescind these
laws).” Aplts. Br. at 43. As they put it, “The first classification includes citizens facing
problems for which Congress delegated statutory authorities to agencies. Congress
delegates authority to agencies when it faces complex conditions involving a host of
details with which it cannot deal directly.” Id. (brackets and internal quotation marks
omitted). Plaintiffs contend that this grouping includes people protected by regulations
such as the Stream Protection Rule. The second category, they say, “includes citizens
who face less-complex issues that Congress can solve directly by statute without
delegating to an agency.” Id. at 44. Proffered examples of “simpler problems” are
“immigration, minimum-wage, and campaign finance laws, which have perennially
failed to gain enough votes to invoke the Cloture Rule.” Id. at 43–44. Plaintiffs
maintain that these classifications “are the type of unusual discriminations or
indiscriminate imposition of inequalities that the Supreme Court rejects.” Id. at 44
(internal quotation marks omitted).
Despite this rhetoric, we fail to see how to identify a specific person as being
discriminated against by the CRA. The problems with making such an identification
are manifold. To begin with, given the pervasiveness of federal regulation, one would
be hard-pressed to distinguish between activities that can be directly regulated by
Congress and those that require some delegation to government agencies. And the fact
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that one is impacted by such regulation does not determine whether that person would
be helped or harmed by the possibility of congressional review under the CRA. Any
regulation—any law—will create winners and losers. And the general subject matter
of the regulation itself will not tell us who benefits and who is harmed. An
environmentalist may be happy with one environmental regulation and distressed by
another. The “class of persons” discriminated against by the CRA will vary depending
on what particular regulation is up for consideration by Congress; after all, the CRA
could have an impact on any regulation promulgated by a federal agency. There will
always be a multitude of regulations that could be affected by consideration under the
CRA, and one person could simultaneously be in the discriminated-against class with
respect to some regulations (regulations that the person wishes to protect against
congressional review) and be in the discriminated-in-favor-of class with respect to
others. In light of the neutrality of CRA procedures with respect to the content of
regulations, there is simply no sensible way of delineating who is within the purported
class of those discriminated against by that statute. And because Plaintiffs have failed
“to demonstrate that the law classifies persons in some manner,” we cannot “subject
[the CRA] to any form of review under the equal protection guarantee” of the Fifth
Amendment’s Due Process Clause. Christy, 857 F.2d at 1331 (internal quotation marks
omitted; emphasis added).
C. Substantive Due Process
Finally, Plaintiffs contend that the CRA violates their right to substantive due
process. They essentially concede that because the CRA does not implicate a
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fundamental right, rational-basis review applies to this claim. Such a “highly
deferential” standard of review, Maehr v. U.S. Dep’t of State, 5 F.4th 1100, 1122 (10th
Cir. 2021) (internal quotation marks omitted), is particularly appropriate given that the
bailiwick of the CRA is the internal rulemaking of Congress, and each House of
Congress has express constitutional authority to “determine the Rules of its
Proceedings,” U.S. Const. art. I, § 5, cl. 2. A law will be sustained under this tier of
scrutiny if it is “rationally related to a legitimate governmental purpose.” Hodel v.
Indiana, 452 U.S. 314, 331 (1981); accord Save Palisade FruitLands v. Todd, 279 F.3d
1204, 1210 (10th Cir. 2002). A party challenging a law under rational-basis review
must “negative every conceivable basis which might support it.” FCC v. Beach
Commc’ns, 508 U.S. 307, 315 (1993) (internal quotation marks omitted). Our
assessment is limited to whether “it might be thought that the particular legislative
measure was a rational way” to address the perceived “evil at hand.” Scarlett v. Air
Methods Corp., 922 F.3d 1053, 1070 (10th Cir. 2019) (internal quotation marks
omitted). Thus, “a legislative choice . . . may be based on rational speculation
unsupported by evidence or empirical data.” Beach Commc’ns, 508 U.S. at 315.
“Where there are plausible reasons for Congress’ action, our inquiry is at an end.” Id.at 313–14 (internal quotation marks omitted). “[I]t is entirely irrelevant for
constitutional purposes” whether the putative rational basis “actually motivated the
legislature.” Id. at 315.
There are several plausible reasons for the Senate to have different procedures
for enacting ordinary legislation versus repealing agency-formulated rules. For one,
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expedited procedures for the latter may enable more efficient congressional oversight
of delegations to executive branch agencies, by allowing Congress to swiftly
countermand agency actions that it perceives as unwise, unfounded, or otherwise
unwanted. Maintaining Congress’s primacy in lawmaking—including by overriding
agency actions via duly enacted legislation—is a legitimate governmental purpose.
Eliminating self-imposed roadblocks to the passage of legislation through an oft-
unwieldy body, as the CRA does, is rationally related to this end. Other rational bases
might include control of “midnight regulations” by lame-duck administrations, cf.
Carey & Davis, supra, at 6 & n.28, and increasing oversight of rulemaking by
independent agencies, cf. id. at 4–5. Any one of these rationales suffices individually.
Plaintiffs claim that in enacting the CRA, “Congress irrationally presumed
pervasive agency misconduct,” and therefore the CRA fails rational-basis review.
Aplts. Br. at 54. They appear to contend that the presumption of regularity of actions
by government agencies, see Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157,
174 (2004) (“The presumption of regularity supports the official acts of public officers
and, in the absence of clear evidence to the contrary, courts presume that they have
properly discharged their official duties.” (internal quotation marks omitted)), creates
a presumption that congressional measures to overturn agency action must be
improperly motivated. And they claim that support for the proposition that there was
improper motivation can be found in the statements of several members of Congress.
Plaintiffs’ argument is fatally flawed in several respects. First, the statements of
a few legislators concerning their motives for voting for legislation is a reed too thin
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to support invalidation of a statute. As Chief Justice Warren wrote in United States v.
O’Brien, 391 U.S. 367, 384 (1968), the Court will not “void a statute that is, under
well-settled criteria, constitutional on its face, on the basis of what fewer than a handful
of Congressmen said about it. What motivates one legislator to make a speech about a
statute is not necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork.” And such invalidation is likely to be
futile. As the Chief Justice said, “We decline to void essentially on the ground that it
is unwise legislation which Congress had the undoubted power to enact and which
could be reenacted in its exact form if the same or another legislator made a ‘wiser’
speech about it.” Id.Plaintiffs’ argument is also flawed because the presumption of regularity is
inapplicable in this context. The presumption of regularity is an evidentiary hurdle for
litigants seeking to challenge an agency’s administration of legislative commands; it
says nothing about the propriety of revising those legislative commands. When
Congress sets aside an agency regulation through the CRA, it is not implying that the
agency acted in any unlawful or improper manner in promulgating the regulation. It is
simply saying that, as a matter of policy, Congress disapproves of the regulation.
Indeed, if the regulation had been improperly promulgated, it could be set aside
through litigation. If any presumption is to apply in evaluating the legitimacy of the
CRA, it should be that the statute was enacted to address “undesirable” (in the eyes of
Congress) regulation that was not subject to judicial correction.
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The third flaw in Plaintiffs’ argument is also dispositive. In challenging the CRA
because of the alleged motive in enacting it, Plaintiffs are simply asking us not to apply
rational-basis review, where actual motive is not to be considered. The reviewing court
is only to assess whether there is a conceivable proper reason for the legislation, and
“it is entirely irrelevant for constitutional purposes whether the conceived reason” for
doing so “actually motivated the legislature.” Beach Commc’ns, 508 U.S. at 315. The
burden on those challenging the legislation is, as we have already said, to “negative
every conceivable basis which might support it.” Id. It is not enough to come up with
some improper purpose. There is no substance to Plaintiffs’ substantive-due-process
challenge.
III. CONCLUSION
“The [C]onstitution empowers each house to determine its rules of proceedings.
It may not by its rules ignore constitutional restraints or violate fundamental rights,
and there should be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained. But within these
limitations all matters of method are open to the determination of [each] house, and it
is no impeachment of the rule to say that some other way would be better, more
accurate, or even more just.” United States v. Ballin, 144 U.S. 1, 5 (1892); accord
NLRB v. Noel Canning, 573 U.S. 513, 551 (2014) (reaffirming Ballin).
Plaintiffs object to Congress’s adoption of the CRA and the Senate’s use of the
Cloture Rule. They clearly believe “that some other way would be better, more
accurate, or even more just.” Ballin, 144 U.S. at 5. But that is not for them—or us—to
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decide. The prerogative to change the Senate’s rules of debate belongs to the Senate
alone.
We AFFIRM the district court’s order.
32