As someone who has spent years defending the Senate filibuster — even when it was politically inconvenient for Republicans— I’m stunned by the latest display of hypocrisy from Senate Democrats.
Republicans are using the Congressional Review Act (CRA) to challenge the Biden administration’s effort to push an unconstitutional electric vehicle mandate nationwide. Democrats are warning of “profound institutional consequences,” claiming this would somehow undermine the filibuster. That claim is absurd and dishonest.
In a letter to Republicans, twenty Democrats led by Senate Minority Leader Chuck Schumer (D-NY) wrote, “we write to emphasize the far-reaching and likely irreversible consequences if the current Senate Majority were to overrule the Senate Parliamentarian’s recent decision that a joint resolution of disapproval regarding three Clean Air Act preemption waivers granted by the Environmental Protection Agency (EPA) to the state of California would not be entitled to expedited procedures in the Senate.” It is important to note that the Parliamentarian does not make rulings – the Senate does. The Parliamentarian is merely a staffer who serves at the discretion of the Senate and any suggested ruling they make is not binding on the Senate.
In this case the Parliamentarian is flat out wrong. The CRA is not a loophole to evading the filibuster. It’s the law. Enacted in 1996, the CRA gives Congress the power to review and overturn recently issued federal regulations using a simple majority vote in both the House and Senate. It was passed with bipartisan support and signed by President Bill Clinton. The whole point was to ensure Congress could act quickly to check unconstitutional regulatory overreach.
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The CRA is also a way for Congress to reclaim the power to legislate and stop the executive branch from issuing interpretations of law that are effectively making new law. Congress has delegated way too much discretion to the executive branch over the years and the executive branch has abused that discretion. The CRA is one check against the executive branch attempting to legislate in a way that violates the Constitution’s separation of powers.
The CRA has worked as intended. Congress has used the CRA under both Democratic and Republican administrations. In fact, Democrats used it to repeal Trump-era rules in 2021. But now that Republicans are using it to push back on Biden’s climate agenda, Democrats are pretending it’s some kind of procedural abuse.
Republicans are pushing back on Biden EPA waivers that allowed California to phase out gasoline-powered cars, effectively mandating electric vehicles. This rule has significant implications beyond The Golden State. Historically, automakers have not wanted to produce different cars for different states, so California’s rules often become the de facto standard for the entire country. That’s regulation without representation.
Congress never voted to eliminate gas-powered cars. This sweeping change, with massive consequences for consumers, manufacturers, and the energy grid, was made by unelected bureaucrats at the EPA, acting on behalf of one state. Not only does this violate Article I, Section 1 of the Constitution, which vests all legislative powers in the Congress, but it also likely runs afoul of the Major Questions Doctrine recently reaffirmed by the Supreme Court.
That’s why the CRA exists — to let elected lawmakers step in when federal agencies go too far.
The House has already passed three CRA resolutions to overturn these California rules, and they did so with bipartisan support. One resolution, targeting the gas car phaseout, got 35 Democratic votes. Now it’s the Senate’s turn to act.
Instead of debating the issue, Democrats are trying to block the vote altogether. They’re even floating the idea that the Senate Parliamentarian might ask the presiding officer to rule against it. The Parliamentarian’s opinions are advisory, not binding. The presiding officer, often the Vice President or a Republican Senator, can make a ruling and if Democrats disagree, they can appeal that ruling and force a vote.
Democrats know this. They were perfectly willing to ignore the Parliamentarian when they tried to jam immigration and labor provisions into reconciliation a few years ago.
Republicans are not breaking any rules. They are following the CRA exactly as written and standing up for constitutional governance. And they are saying no to California dictating how the entire country drives through a policy that Congress never authorized.
Senate Democrats like the idea of a national mandate for electric vehicles and that is the real reason why they are fighting this CRA. The Senate should step up and stop the executive branch from legislating on a matter of great importance to all those who want the freedom to purchase the care of their choice.
Brian Darling is former Counsel for Sen. Rand Paul (R-KY).
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