Citizens for Constitutional Integrity, et al. v. United States, et al.

Article 1, Section 7, of the Constitution sets the voting threshold to pass bills at a majority of a quorum. Filibusters, however, prevent the Senate from passing legislation without 60 votes to invoke cloture. See Standing Rule of the U.S. Senate XXII.2 (the Cloture Rule). The Congressional Review Act, 5 U.S.C. 801-808, carves out an exception. When an agency issues a legislative rule, that Act’s rules allow 51 votes in the Senate to pass a bill declaring the legislative rule without “force or effect.” 5 U.S.C. 801(f), 802(d)(1). The Act also bars agencies from issuing a new rule that is “substantially the same” unless Congress passes a new law. 5 U.S.C. 801(b)(2). But that new law to restore the rule requires 60 votes in the Senate to invoke cloture. The questions presented:

1. Whether the Congressional Review Act, which incorporates the Cloture Rule, 5 U.S.C. 801(b)(2), violates the separation of powers by creating a oneway ratchet that exists solely to erode, undermine, and chip away at Executive Power.

2. Whether the Congressional Review Act’s two, unequal voting thresholds, 5 U.S.C. 801(d)(1), 802(b)(2), make it harder for Congress to fix mistakes, therefore merit intermediate scrutiny under equal protection, and ultimately fail the test. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

3. Whether the Senate’s two, unequal voting thresholds, together, violate substantive due process by accomplishing the illegitimate objective of manipulating Article I, Section 7, simple-majority voting thresholds.