Senate Shouldn’t Let Even More Bureaucrats Say What The Law Is

Who decides what statutes say in Congress? The obvious answer is that Congress itself decides. But if Senate Republicans are not careful, they will set a new precedent to outsource this power to the Senate parliamentarian and the left-wing bureaucrats at the Government Accountability Office (GAO). 

At issue are the Environmental Protection Agency (EPA) waivers Joe Biden granted to California under the Clean Air Act. As attorneys Michael Buschbacher and James Conde recently explained, these waivers wreak havoc on the domestic automotive and fossil-fuel industries, limiting consumer choice, hurting workers, and upending the Constitution by forcing 49 states to, in essence, do California’s environmentalist bidding. 

Recognizing how toxic these waivers are to his energy-dominance agenda, Donald Trump had his EPA transmit three such waivers to Congress for potential review and disapproval under the Congressional Review Act (CRA). So far this year, Congress has repealed half a dozen Biden rules under the CRA’s fast-track procedures. 

The California waivers are rules. They are executive actions of general, prospective applicability. As the Ninth Circuit Court of Appeals has explained, “adjudications involve concrete disputes [and] they have an immediate effect on specific individuals (those involved in the dispute).” In contrast, “Rulemaking … is prospective, and has a definitive effect on individuals only after the rule subsequently is applied.” 

If it walks like a duck, looks like a duck, and quacks like a duck, it’s a duck. These waivers were issued like rules, give future effect to emissions standards like rules, and have national applicability like rules. They’re rules.

With Congress poised to finally eliminate these job-killing waivers, though, Democrat senators asked GAO to come to their rescue. Entrusting the matter to its DEI-happy general counsel, GAO dutifully made “observations” (whatever that means) about the submitted rules to say that they aren’t, in fact, rules.

Anyone who has worked with the CRA knows this is precisely backwards. GAO’s authority is to — at the request of Congress — evaluate executive actions that were never sent and rule on whether they would be rules had they been sent. The role of GAO is not to second-guess transmitted rules.

The issue has since gone to the Senate parliamentarian, who recently ruled that it’s not a rule for the purposes of the CRA. The traffic cop of the Senate floor, the parliamentarian is the expert on Senate rules and procedures. But whether an executive communication is an executive “rule” under the statutory text of the CRA is not properly a procedure question. What follows from such a determination — privileged consideration, fast-track procedures, etc. — surely are process questions, but the determination itself is a question of substantive statutory construction under the CRA and the Administrative Procedure Act (APA).

The parliamentarian, supremely talented though she is on Senate rules and precedents, simply has no delegated authority under those rules or precedents to issue an authoritative judgment like this on this question of substantive law. It is like an umpire — not content to call balls and strikes — switching up the Nationals’ batting order. 

The parliamentarian, in some circumstances, can adjudicate substantive legal disputes but only when so empowered by the Senate. The most famous example of this is the Byrd Rule in the budget-reconciliation process, which has long allowed the parliamentarian to opine on which matters are “extraneous” to budget reconciliation and therefore not subject to a simple-majority threshold. But this power derives from multiple statutes designed to give her this power, enacted over a decade, and reinforced by countless actual precedents since. The CRA lacks anything resembling that legislative history in empowering the parliamentarian to make substantive legal determinations.

There’s a similar dynamic with germaneness under Senate Rules XVI and XXII. There the rules explicitly limit what kind of amendments can be offered to appropriations bills or after cloture has been invoked, respectively. But it’s still up to the Senate itself to decide what is and isn’t germane, even though there are decades of practice — and, in the case of Rule XVI, robust precedent — giving the parliamentarian an outsized role in understanding germaneness. Again, this situation in no way resembles the past practice of the CRA.

The fact is that if Senate Republicans stand by the parliamentarian’s ruling and allow her to determine what executive communications are and aren’t actually rules, they will be setting their own new precedent for the CRA; call it “the Whitehouse Rule” after Sheldon Whitehouse, D-R.I., the senator who goaded GAO into action. Going forward, those opposed to CRA resolutions would be able to smother them in the crib with adverse GAO “observations” adjudicated by the parliamentarian, who will herself be mired in an endless morass of legalese about statutory construction and APA interpretation. 

Furthermore, if the comptroller general is able to foil the White House’s energy agenda, Donald Trump will surely fire and replace him. Tenure protections have not stopped the president yet. When that legal storm subsides, does anybody really think a Trump comptroller’s “observations” will green light, say, Democrat CRA resolutions against the Department of Government Efficiency? The Whitehouse Rule would set a precedent even Democrats will regret — and perhaps a lot sooner than they think.

Much has been made about Congress outsourcing its legislative responsibilities — to the courts, the executive, and private parties. Senate Republicans shouldn’t continue this unfortunate trend by outsourcing their legislative prerogatives to the parliamentarian. 

Michael A. Fragoso is a partner at Torridon Law PLLC. He served as chief counsel to Sen. Mitch McConnell (2021-2025).