Congress Should Keep California From Dictating Environmental Rules To The Whole Country
The Biden administration’s Environmental Protection Agency (EPA) granted waivers to California under the Clean Air Act that, if allowed to stand by the Senate, will enable the state to push mass adoption of unpopular electric vehicles (EVs) on the rest of the nation.
Last month I argued that Senate Republicans should stand their ground and repeal the California waivers via an appropriate exercise of their powers under the Congressional Review Act. Prominent voices have joined this refrain, and the House has done its part by passing three related resolutions (with a robust bipartisan majority). With the question going to the Senate, Republicans there should heed these sensible voices and not the bad-faith argument from Democrats that asserting their prerogatives in this matter will damage the legislative filibuster, because it won’t.
The cleanest and most effective way to kill this is through the Congressional Review Act (CRA), a law from when Newt Gingrich was House Speaker that allows simple majorities in Congress to repeal major rules from the executive branch.
The problem here is that — at the prodding of Sheldon Whitehouse and other Democrat senators — the Government Accountability Office (GAO) purported to decide that the waivers are “orders” and not rules, a determination that would prevent the expedited review under the CRA.
Never mind that the waivers have all the hallmarks of rules and never mind that the GAO comptroller himself recently said to a Senate Appropriations Subcommittee that “[GAO’s] decisions are not dispositive on Congress.” No, because the bureaucrats at the GAO said that this rule isn’t really a rule, it’s not eligible for the CRA and would need to be repealed at a 60-vote threshold, dooming the effort to failure — and the country to unpopular EV mandates. Unfortunately, the Senate parliamentarian seems to agree.
Democrats Exaggerate the Repercussions
Senate Republicans shouldn’t go along with this, and they should pay no mind to Democrats and their media allies as they argue that doing so will have damaging repercussions. In a recent letter to Majority Leader John Thune, 20 Democrats, led by Senate Minority Leader Chuck Schumer, called an assertion of Senate prerogatives here “a procedural nuclear option.” They warned that such a move “could be weaponized to retroactively invalidate decades of agency actions” and place “significant obstacles” in front of future administrations that seek to use similar underlying authorities in the future. Most ominously, they argue, “once that precedent is set, a future Senate Majority could subsequently apply it to legislation beyond the CRA. Put bluntly, there is no cabining a decision to overrule the Parliamentarian.”
This is all nonsense. First of all, overruling the Senate parliamentarian on whether GAO decides what constitutes a rule has no bearing on the whether the CRA could be applied retroactively on decades-old rules, as Democrats argue. It would require a separate, future action to achieve the first of Schumer’s parade of horribles. This is the case because this would only affect what regulations are covered by the CRA and not when the CRA applies, which is a different statutory provision.
Secondly, the ability of the CRA to frustrate future executive action should fall on deaf ears given that President Donald Trump can’t sneeze without a district judge in Boston issuing a temporary restraining order against giving him a Kleenex. It’s already the case that Democrat administrations can rule by “pen and phone” and Republicans have to slog through court as they try to pare back those lawless actions, so perhaps a broader availability of the CRA is just what the doctor ordered.
No Threat to the Filibuster
Most galling is the final implied threat against the legislative filibuster, or the process by which most legislation requires 60 votes to end unlimited amendment and debate. Schumer ended with it because, to a man, Senate Republicans have supported the legislative filibuster. With good reason: the filibuster is a unique and defining characteristic of the U.S. Senate and it is what empowers individual senators to each have an outsized voice in legislating. But the threat is empty because Democrats already have tried to abolish the legislative filibuster. It’s also nonsensical because a CRA resolution is legally and conceptually distinct from legislation.
It’s hard to express just how brazen it is for Democrats to wrap themselves in the cloak of the filibuster. Every one of them has voted to abolish the filibuster or campaigned on abolishing it. Indeed 12 of the 20 signatories of the letter to Thune went so far as to send a bipartisan letter to then-Senate Leader Mitch McConnell in 2017 urging its preservation — after which they then voted to abolish the filibuster in 2022. To call this hypocrisy fails to do it justice. It’s hypocrisy that’s so layered it approaches literary irony.
Republicans should keep the filibuster in place, of course, and — in an ideal world — Democrats would abandon their anti-filibuster position in favor of tradition and bipartisanship. Democrats have done no such thing. Not one of them has regretted his or her prior commitment to filibuster abolition even as they invoke it today. In the end, coming from Democrats, this a bad faith argument; they are threatening to do what they’ll do anyway.
Not Applicable to Regular Legislation
Perhaps more importantly, the CRA simply has nothing to do with regular legislation. To begin with, the CRA is the product of duly enacted legislation itself, having passed both houses and been signed into law by Bill Clinton. There are generally three sources of Senate rules: the standing rules, precedent, and statute. The CRA is in that third category, an enacted statute that provides its own rules for the Senate. Thus a precedent that further interprets the CRA’s statutory rules-provisions can be cabined to apply only to those CRA provisions and not Senate rules generally.
Furthermore, the idea behind the CRA is constitutionally distinct from legislation. The purpose of the law is to give Congress the power to police exercises of authority that it has previously delegated to the executive through prior duly enacted legislation. A resolution of disapproval, then, does not enact any new legislation; all it does is say that the executive’s interpretation of prior legislation is wrong. This is a realm of congressional activity that is inherently downstream of legislation that is itself subject to the filibuster. The CRA, in and of itself, simply has no power as it relates to legislation. It’s always restricted to executive action that operates within (filibuster-protected) statutes.
Senate Republicans shouldn’t fall victim to bad-faith procedural folderol. Repealing the California waivers is an appropriate exercise of their powers against executive misinterpretation of the Clean Air Act. This is entirely distinct from broader fights about reform of the legislative process. In the end, listening to Democrats about how to preserve the legislative filibuster is like listening to a fox on how to secure a hen house.
Michael A. Fragoso is a partner at Torridon Law PLLC. He served as chief counsel to Sen. Mitch McConnell (2021-2025).
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