In a dramatic move that could have significant institutional implications, Republican senators are considering the use of the Congressional Review Act (CRA) to challenge the Biden administration’s waivers that allow California to set more stringent vehicle emissions standards than those enforced by the federal government. This potential action comes amidst warnings that such a move would violate the law, as the CRA only applies to rules with general applicability, not specific agency decisions like California’s waivers.
Historically, the CRA has been a tool for Congress to streamline the disapproval process of government rules by avoiding filibusters. However, legal experts, including the Government Accountability Office (GAO) and the Senate parliamentarian, have repeatedly determined that California’s waivers are not considered “rules” under the CRA due to their limited scope. Instead, they fall under adjudicatory orders since they apply specifically to California. Documents from the GAO and the Senate’s assessment support this interpretation.
Despite this, some Republican senators, including Majority Leader Sen. John Thune, have expressed interest in proceeding with the CRA disapproval. Thune acknowledged the risks involved, particularly the potential undermining of the Senate filibuster, and the precedent it could set for future legislative processes. The consequences of overruling the parliamentarian’s determination could see future Congressional actions bypassing the filibuster altogether, a notion Thune previously warned against.
Proponents for the CRA intervention argue that the nationwide economic effects of California’s waivers justify their classification as rules. Under the CRA definition, however, the economic impact of an agency’s decision does not transform it into a rule. A parallel can be drawn with how the Federal Trade Commission’s actions, which also have nationwide effects, are considered adjudications, not rules. Consequently, concerns that Congress might act without legal basis remain significant.
Legal commentators emphasize that while the CRA allows Congress to disapprove “rules,” it remains clear that adjudicatory orders are outside its scope, whether or not they have large economic implications. If Congress were to proceed with this disapproval, it arguably would be acting outside its legal bounds, a prospect underscored by the potential lack of judicial recourse following such a move. Representative arguments opposing the CRA use highlight how legislative actions should not proceed unchecked simply because judicial review is unlikely.
The matter at hand prompts a broader reflection on the obligations of lawmakers to uphold the law. In bypassing established legal frameworks, Congress not only risks promoting lawlessness but also setting a precarious precedent. The decision at this juncture provides senators a crucial choice: to adhere to statutory law or to challenge it with uncertain ramifications for the democratic process.
For further insights, the original article by Richard L. Revesz, dean emeritus at the New York University School of Law, can be explored on Bloomberg Law.