Who runs the Senate? The democratically elected Majority Leader, Sen. John Thune? Or leftover partisan Harry Reid-appointee, Senate Parliamentarian Elizabeth MacDonough?
The answer to that question may very well determine whether the Republican-controlled Senate will able to vote this week on whether to repeal the Biden EPA decision to allow California to establish a national mandate for electric vehicles (EVs).
The Clean Air Act allows EPA to grant waivers to the state of California in order for the state to set more stringent air pollution regulations than EPA sets for other states. The basic rational for this rule is that California has special environmental conditions. The populous Los Angeles region, for example, is located essentially in a bowl that traps and concentrates air pollution when the wind isn’t blowing.
In December 2024, the Biden EPA granted California a Clean Air Act waiver to mandate that only EVs can be sold in the state by 2035. Although California’s mandate technically only applies to the state, it is really a national problem.
California is a large part of the US new car market. Car makers don’t make one type of car for California and another type of car for the other 49 states. They make one type of car for all 50 states. There is genuine concern that California’s EV mandate would become a de facto national mandate.
Because the Biden EPA was late to issue the December 2024 waiver, it is now subject to the Congressional Review Act (CRA). Under the 1996 law, Congress may repeal regulations by a simple majority vote, no filibuster permitted, within 60 legislative days of a regulation’s issuance. The House voted on May 1 to repeal the California waiver and now it is the Senate’s turn to do so. The Senate has until the first week of June to do the same.
But there’s a problem.
Ahead of the House vote, the General Accounting Office tried to derail the CRA rule by characterizing the waiver as a permit versus a regulation, where permits are not eligible to be repealed by the filibuster-proof CRA. But while the EPA granted permission to California to regulate more stringently, the end result is more stringent regulation. The waiver, therefore, is a clearly a regulation and not some sort of permit.
Speaker Johnson rightly chose to ignore the weird General Accounting Office interpretation of the waiver. The House subsequently passed the repeal, 246 to 164, with 35 Democrats joining all 211 Republicans present.
But opponents of the CRA action still have hope because the Senate Parliamentarian, appointed to her post by Democrat and then-Senate Majority Leader Harry Reid in 2012, thinks the GAO was correct. She has some Republicans uncertain of their position.
According to Politico, Sen. Susan Collins of Maine, said has “some procedural issues” with the waiver. Sen. Lisa Murkowski of Alaska is “discussing the issue with colleagues and not yet ready to make a decision.” “There is obviously apprehension if we go sideways on our own rules and so I’m having a lot of good conversations,” Murkowski said.
Even West Virginia’s Sen. Shelley Moore Capito told Politico, she wasn’t “100 percent decided” yet. This holdout behavior is outrageous and Leader Thune should not stand for it.
First, the Parliamentarian is plainly wrong. The waiver is a regulation not a mere permit.
Second, the Parliamentarian is plainly partisan. Beyond her Harry Reid-era provenance, she conveniently decided all the climate provisions and spending in the 2022 Inflation Reduction Act were budget- versus policy-related and so could be voted on under the non-filibusterable reconciliation process. But for her decision, the IRA would never have been enacted and President Trump and congressional Republicans wouldn’t be burdened with repealing a trillion-plus dollars worth of Green New Scam spending.
Finally, the Parliamentarian’s opinion is just like the GAO’s – i.e., merely advisory in nature. Leader Thune is not bound by Senate rules or any law to accept it. It would be absurd for a Republican-controlled Senate to allow a leftover Democrat administrative appointee to dictate the measures upon which Senate Republicans may vote.
President Trump campaigned on ending the EV mandate. Leader Thune should bring the California waiver up for vote next week and have Vice President JD Vance on-hand, if necessary, for a tie-breaking vote. Then, after winning the vote, appoint a new Parliamentarian.
Steve Milloy is a biostatistician and lawyer, publishes JunkScience.com and is on X @JunkScience.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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