On Wednesday, the Senate broke with precedent to disapprove a California waiver under the Clean Air Act that allowed the state to adopt the Clean Cars II rule, which was passed in 2022 and has been adopted by 12 other states and the District of Columbia, as is allowable under the Clean Air Act (CAA).  The rule requires automakers to ramp up zero emission light duty vehicle sales on a yearly basis through 2035, at which point the sale of internal combustion engine light duty vehicles would be banned in the state of California and those states that have also adopted the rule. With the waiver revoked, Federal regulations on vehicle emissions will preempt the rules adopted in California and other states, and will prohibit their enforcement actions against automakers in their states. 

The Congressional Review Act (CRA) entitles joint resolutions of disapproval to privileged treatment in the Senate, which means that the resolutions are not fully debatable, e.g. not subject to a 60-vote threshold to end debate. But in this instance, the Parliamentarian advised Senate leadership that the joint resolution of disapproval for the California waiver did not qualify for that expedited consideration under the CRA. Yet Senate Majority Leader John Thune (R-SD) opted to move forward with the resolution anyway and passed it with only 51 votes. By means of some Kabuki theater on the Senate floor, Sen. Thune was able to create a new precedent during consideration of a separate CRA vote and then immediately use that new precedent in consideration of the California waiver. In this way, he narrowly avoided having to publicly override the parliamentarian, an action he swore not to take, just four months ago. However, there is no question that the Senate has chosen to disregard the advice of the parliamentarian. So even though the change in precedent on the CRA itself is somewhat narrow, this still appears to be a new phase of Senate conduct with potentially far-reaching implications.  

What happened this week 

Typically, it can be difficult to know all the inner workings and activities that lead to the outcomes on the Senate floor, but in this case, conveniently, Senator Whitehouse (D – RI) described them on the floor in some detail. “So in the Congressional Review Act matter before us, here is what happened: Both sides drafted written memoranda to the Parliamentarian. Both sides presented oral arguments to the Parliamentarian. The Parliamentarian asked questions of both sides, and the Parliamentarian, our neutral referee, reached a decision. That all took place here in the Senate—actually, over there in the L.B.J. Room. The [Government Accountability Office] GAO was not even in the room when the arguments were made. And that decision, the decision of the Parliamentarian, is what is now at hand in what is about to happen here in the Senate.” 

Senator Schumer and others in the Democratic caucus pressed the point on the Parliamentarian’s decision, asking Sen. Capito, serving as the Presiding Officer to confirm “the Parliamentarian advised leadership offices that the joint resolution of disapproval regarding the California waivers at issue do not qualify—do not qualify—for expedited consideration under the Congressional Review Act?” to which Sen. Capito responded “The Parliamentarian has advised me that such advice was given.”  

Typically, in order to take a different course than the one advised by the Parliamentarian would require a vote to overrule the Parliamentarian. But in January, Sen. Thune described that as akin to killing the filibuster. So, to avoid that direct confrontation, Sen. Thune found a way to introduce a novel question in the context of a separate CRA vote and thereby created a precedent that could immediately be used in the context of the California Waiver vote. Specifically, Sen Thune brought up a CRA resolution of disapproval for the National Highway Traffic Safety Administration’s Federal Motor Vehicle Safety Standards (FMVSS) rule on hydrogen vehicles. (The FMVSS rule was also disapproved on Wednesday.) Sen. Thune then raised a point of order that points of order are in order (yes you read that correctly) because of conflicting statutory text of the CRA that both waives all points of order against a joint resolution but also allows the possibility of debate on appeals on the joint resolution. Having won the vote by simple majority to establish that points of order are allowable, Sen. Thune was able to raise a point of order that joint resolutions that meet all the requirements of section 802 of the CRA are entitled to expedited procedures under the CRA. And then, with a “pursuant to the precedent just established by the Senate, the question occurs on the motion to proceed,” and by a simple majority the California waiver, not previously subject to the CRA, was repealed under the CRA, without having to overturn the ruling of the parliamentarian. 

Background on CRAs in the last decade 

The Congressional Review Act – one of several poorly written laws providing for expedited procedures in the Senate – was enacted in 1996 but lay dormant other than one use in 2001. This is because, politically, it only works to make real change in the first year of a new Administration that also has control of both chambers of Congress. Starting in 2017, the use of the CRA picked up steam considerably. The law was used in the 115th Congress to repeal 16 rules promulgated by the Obama administration and was utilized again in the 117th Congress to similarly repeal three rules promulgated by the Trump administration. Use of the law does require alignment of both houses and the current president, so despite 200 joint resolutions of disapproval of Biden Administration rules being introduced in the 118th Congress, only 10 were passed, and all of them were vetoed. With the two resolutions that passed this week, there have now been 11 Biden Administration rules repealed through the CRA. 

Important in understanding this latest escalation in the use of CRAs is some fundamental lack of clarity within the CRA itself about the role of GAO and the definition of a rule. GAO has one explicit statutory requirement under the CRA, which is to provide a report to the committees of jurisdiction on each major rule, describing the agency’s compliance with the rulemaking process for each major rule. However, to do so, agencies must submit their rules to GAO, and agency compliance with that submission requirement has been mixed, especially in the early years of the CRA. So in order to preserve their right to consider rules under the CRA, members of Congress began a practice of requesting that GAO opine on whether a federal action is a rule subject to the CRA or not, regardless of whether an agency had submitted the rule to GAO. Despite the CRA being silent with regard to who is responsible for determining if an action is a rule, Congress has heretofore followed the GAO opinion on the matter. 

With regard to the CAA waiver specifically, the first Trump Administration attempted to revoke the California waiver administratively in 2018, but as the CAA does not actually contemplate a process for revoking a waiver, the effort was challenged in court by 23 states. Before the litigation was resolved, the Biden Administration took office was reversed the revocation.  

Rather than try their luck again with the administrative approach, immediately upon confirmation, Administrator Lee Zeldin of the EPA sent the Biden Administration’s waiver decision to Congress, calling it a rule and accusing the Biden Administration of having failed to send it for review. However, GAO had already reviewed the waiver in 2023, in response to a request from Senate Shelley Moore Capito (R – WV), and had determined that it is not a rule but rather is an adjudicatory order and therefore would not be entitled to privileged treatment under the CRA. (GAO noted further that even if the waiver were a rule, it still wouldn’t qualify under the CRA because the CRA explicitly exempts rules of particular impact, e.g. rules that only affect one state or entity.) GAO reiterated this position after Administrator Zeldin submitted the waiver for review.  

Some readers who have tracked GAO opinions on what qualifies as a rule in the CRA may be surprised at the agency’s determination that the California waiver would not be subject to the CRA, given their determination of CRA eligibility of the (now infamous) 2021 guidance document from the Federal Highway Administration. In that memo, FHWA suggested that their division staff should encourage states to consider perhaps maybe using their highway dollars to maintain existing roads instead of building new roadway capacity. Despite the lack of any possible enforcement of that encouragement and general skepticism about the potential for any real-world effect, the guidance document was determined by GAO to be subject to the CRA because it instructed agency employees to take action in a way that could have future effect, even if that action was merely an encouragement. However, the CRA adopts the definition of a rule from the Administrative Procedures Act, which distinguishes rules from adjudications including orders and investigations. An order is a case-specific, individual determination of a particular set of facts that has immediate effect on the individuals involved. 

The FHWA memo was not the first instance of GAO determining a document was subject to the CRA despite being a statement of policy or other guidance not commonly seen as a rule. Perhaps it’s due to this trend for GAO to consider an ever-wider number of federal actions subject to the CRA that Sen. Thune described their decision on the CA waiver as “unprecedented”. To wit, his statement on the floor declared that “for the first time ever, the Government Accountability Office has decided to insert itself into the process and affirmatively declare that an Agency rule submitted to Congress as a rule is not a rule.” But to be clear, the novelty was not that the GAO was part of the process, but rather that their declaration regarding the “rule” was not in the affirmative.  

Implications of broadening the CRA 

The primary change in precedent created this week is to work around the role of the GAO in determining which rules are subject to the CRA. Sen Thune sought to cast the change as a return to congressional intent, stating that “It is an extraordinary deviation from precedent for an Agency [GAO] that should be defending Congress’s power instead of constraining it. And, frankly, I think we need to act to ensure that this intrusion into the Congressional Review Act process doesn’t become a habit and that the Senate doesn’t end up transferring its decision-making power on CRA resolutions to the Government Accountability Office.”  

This declaration is remarkable insofar as it disregards the CRA history, in which Congress passed an unclear law and then deliberately handed power to GAO by asking them to determine whether agency rules are subject to the CRA or not. But even more significant, it portends a potentially significant expansion in the use of the CRA, unconstrained by a determination from GAO or the parliamentarian and guided only by the politics of the Senate. Senator Capito in her floor statement was even more explicit about their intention of “refusing to narrow the CRA by subjecting its use to GAO approval.” 

The APA’s distinction between rules and adjudicatory orders and investigations is the most straightforward space to which it is foreseeable that the CRA will now apply. Democratic members on the floor suggested some possibilities, such as project approvals for mining or fossil fuel projects, LNG export licenses, offshore leases, IRS tax policies, foreign policy. GAO in prior opinions has suggested examples of orders include licensing, modifications to a risk mitigation strategy for a particular drug, and petitions under a statutory exemption, such as from a refinery. All such actions will certainly be at greater risk of a resolution of disapproval in the future. 

California Attorney General Rob Bonta has said the state “intend[s] to sue the Trump administration” about the submission of the waiver as a rule under the CRA. However the CRA states that “no determination, finding, action, or omission under this chapter shall be subject to judicial review” and generally courts have concluded that at a minimum, the provision prevents review of Congress’s determinations, findings, actions, or omissions made under the CRA. 

In addition, Congress has always had the power, by majority vote, to pass a law that overturns any executive branch regulator or regulatory determination. It happens from time to time in appropriations bills outside the CRA process. Courts don’t look at Congressional internal procedures unless there is some kind of constitutional interest at stake. If the House and Senate both pass a joint resolution by majority vote, and the President signs it within 10 days of presentation, it becomes a law, and the courts generally refuse to look at the procedures followed to get the bill to the point of being passed by both chambers. The governing Supreme Court precedent in this case is still Marshall Field v Clark (1892), in which the Court refused to look beyond that fact that the Speaker of the House and President pro tem of the Senate had signed and certified a bill – if they signed it, that meant the process that created it was constitutional. 

Implications for disregarding parliamentarian 

Sen. Thune has repeated sought to describe this precedent as “a very narrow, very novel case in which you’re dealing not with legislation but with an administrative ruling by an executive branch agency.” However for Senate staff who have lived through it, it’s impossible to hear the description of bipartisan committee staff preparing memoranda for the parliamentarian, presenting arguments to her in the L.B.J. room, and receiving her decision, without thinking immediately of the Byrd bath, in which the exact same process is employed. Certainly, the novel question that was called in this instance on the CRA does not enable the Senate majority leader to overrule the parliamentarian in the context of reconciliation, while avoiding public awareness for doing so. But the approach of finding work-arounds to pass non-privileged legislation with a simple majority certainly seems relevant in the reconciliation context. In that case, the real precedent will be the practice of having the presiding officer submit a point of order, rather than overruling the parliamentarian, and allowing a simple majority vote whether or not to sustain it. 

Senate Democrats made their feelings on the matter clear, with multiple Senators telling their Republican colleagues on the floor that with regard to Senate precedent breaking, “what goes around comes around.”