Citizens for Constitutional v. United States

57 F.4th 750

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 10, 2023
• Docket: 21-1317
• Status: Published

Opinion

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) 2 Appellate Case: 21-1317 Document: 010110795646 Date Filed: 01/10/2023 Page: 3

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 3 Appellate Case: 21-1317 Document: 010110795646 Date Filed: 01/10/2023 Page: 4

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.”). 4 Appellate Case: 21-1317 Document: 010110795646 Date Filed: 01/10/2023 Page: 5

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 Appellate Case: 21-1317 Document: 010110795646 Date Filed: 01/10/2023 Page: 7

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). 22 Appellate Case: 21-1317 Document: 010110795646 Date Filed: 01/10/2023 Page: 23

“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). 24 Appellate Case: 21-1317 Document: 010110795646 Date Filed: 01/10/2023 Page: 25

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

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.