During remarks on the Senate floor Thursday, Sen. James Lankford (R-OK) responded to Democratic colleagues accusing Republicans of going 'nuclear' by using the Congressional Review Act to undo California's emissions regulations.
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00:00I ask unanimous consent the bill be considered read a third time and passed and that the motion
00:04to reconsider be considered made and laid upon the table. Is there objection? Without objection.
00:16Mr. President, I rise today to talk about two separate issues that seem to be confusing in
00:23our current climate at this point. The first of those is something called nationwide injunctions.
00:28Now, for folks that don't track this issue of nationwide injunctions, they have no idea what
00:34this means. I would tell you it is a fairly recent thing. We have three branches of government.
00:41Any civic student in middle school knows that. We have the legislative branch, we have the
00:45executive branch, and we have the judicial branch, and all three have unique roles. The legislative
00:50branch that we're in right now, we write the law. The executive branch executes the law.
00:57Judicial branch interprets the law. Now, we know there's a difference between the House
01:01and the Senate. The Senate has a responsibility, and the House has a responsibility, and they're
01:05different, but they're both in the legislative branch. Judicial branch also has different
01:10pieces as well, just like the legislative branch. There's the Supreme Court. We know that. It's
01:14right across the street. There's nine justices that sit there, and they're the final decision
01:19maker on what the law says. But there's also daughter courts. There's circuit courts below
01:27the Supreme Court, and below the Supreme Court, there's district courts. District courts are
01:32scattered all over the country, and those individual small district courts that are scattered all
01:37around the country, those individual courts, they make a decision on the person that's in
01:41front of them. Now, again, this is fairly simple civics. When you have a federal case in front
01:47of you, you go to the district court, and you file, and you get time in front of a judge.
01:52Now, it may take time to be able to get there, but they make a decision on what is in front
01:57of them. That's what district courts do. They don't make decisions on something that's in
02:03a different state. The fine judges that are in Oklahoma make decisions about the case that's
02:08in front of them in Oklahoma. They don't decide a case in Indiana because they're not in Indiana,
02:14and it's not a case filed in front of them. It's only the case filed in front of them
02:19in Oklahoma. Now, if there's a dispute about that, it can be appealed, and it goes up to a circuit court,
02:25and it takes in a region, and if there's a dispute even there, they take it on to the Supreme Court.
02:31Pretty simple until the last several decades. You see, prior to 1960, there was no such thing as a
02:40nationwide injunction. No one even considered that. But we started seeing this beginning point
02:47where a district judge in a court in a single state would hear a case and to say,
02:55this is so big, I'm not going to let this go to the circuit court or to the Supreme Court.
03:00I'm going to, in my lower, in fact, lowest court in the federal structure, I'm going to decide for
03:07the entire country, not just the person in front of me. And there were just a few that happened at
03:12that time, and the Supreme Court kind of looked away because they seemed like big cases.
03:17But then it started to rise. During George W. Bush administration, there were six nationwide
03:25injunctions that were done in these local district courts. Under President Obama, there were 12
03:31nationwide injunctions that were issued. Then under President Trump, the first term, there were 64
03:37nationwide injunctions. As more and more individual district courts decided, I have an opinion,
03:44and I'm not going to decide about the case in front of me. I'm going to decide about the entire
03:50country. Under President Biden, there were 14 nationwide injunctions that happened. In fact,
03:57President Biden's Solicitor General, the one who actually argues to the Supreme Court,
04:02warned that nationwide injunctions halt the legal government actions and policies.
04:08See, this is not a Republican-Democrat thing. This is a constitutional thing.
04:12This is the United States constitutional structure to say, what is the role of lower courts,
04:18what is the role of a circuit court, and what is the role of the Supreme Court?
04:24We as people in our nation, we honor the constitutional construct. And for me, it's exceptionally important
04:32that the courts are blind to these issues, and that they take action on the case in front of them,
04:40and not a case that's not in front of them.
04:45Senator Grassley has introduced a bill to rein in the use of nationwide injunctions.
04:49His legislation is called the Judicial Relief Clarification Act. It makes it very simple.
04:56It is an important case, or it's an important piece of legislation, to decide how we're going to handle cases like this.
05:04It is very simple. Courts decide the cases in front of them.
05:10That has been the practice up until the early 1960s.
05:14We need to get it to be back to the practice again.
05:19Not a Republican issue, not a Democrat issue, a constitutional issue.
05:24Nationwide injunctions are a backdoor way for judges to actually write legislation and to bring the decision of the executive branch to a halt.
05:36The executive branch does have checks and balances, as does the legislative branch, as does the judicial branch.
05:43Those checks and balances are clear. If the executive branch does something inconsistent with the Constitution, it goes to our federal courts and quickly works its way up through the district court, circuit court, to the Supreme Court.
05:57The Supreme Court is the one who checks the executive branch.
06:01Not each district court around the country. It is the Supreme Court.
06:10And we need to be able to get back to that process in the days ahead.
06:14That needs to be done.
06:17So I'm looking forward to seeing Senator Grassley's piece of legislation actually move.
06:22A second issue.
06:23This body for the last week has had a conversation about CRAs, and most of Americans would just flip the dial and go, I don't even know what that is.
06:34Well, the Congressional Review Act is a CRA.
06:38It's actually only existed in the last several decades as Congress found a reason to do oversight of the executive branch,
06:44especially when the executive branch writes what's called a midnight regulation.
06:49Now, that doesn't mean they wrote it at midnight. That means they wrote it and put it in place at the very end of a presidency.
06:56A Congressional Review Act says if there's a piece of regulation that's put in place, a rule that's done by an agency,
07:03and it's put in place, especially when there's a change in Congress and the White House,
07:10that the next Congress and the next White House can look at it and say,
07:13yeah, that's out of bounds. That's too big. That needs to be stopped.
07:19It was actually first used under President Bill Clinton.
07:21He put in what's called an ergonomics rule that literally changed the rules for every keyboard,
07:26every desk in America that would be produced. It was a giant rule they did at the very end.
07:31The next Congress came in and said that would cost hundreds of millions of dollars.
07:35And by the way, why should we in the federal government care what everyone's desk is like?
07:39Let people choose on that. And that simple statement, that simple first time that it was
07:45actually used has started a process now of saying, if an administration at the last minute puts in a
07:53rule, that Congress then comes in and says, you overreached your bounds, we can check it.
07:59Now, how do you determine whether it's a rule or not? What's a rule? What's not a rule? Because a lot
08:04of times agencies put out guidance or they put out orders, they put out all kinds of things. The
08:08Congressional Review Act is very specific. It says you can only take action on this when it is
08:13actually a rule. Well, there's two different ways that that's determined, actually. One is,
08:19how much is it going to cost the entire economy? If it's over $100 million that it's going to cost
08:23the economy, it's a rule. It's going to have a massive effect across the entire economy. The second
08:29way is pretty straightforward. The Government Accountability Office, you'll hear it often referred
08:34to as GAO. In 2018, they came out and wrote their legal decision and said, it can either be a big
08:40thing that costs $100 million across the government, or I'm going to quote GAO in this and their decision
08:46that the CRA, the Congressional Review Act, gives agencies the primary responsibility for determining
08:52which agency actions meet the CRA's definition of rule. In other words, agencies get the first option
09:00to say, is this a rule or is this not a rule? If an agency says it's a rule, it's a rule. That's what
09:09GAO said. They came back a couple of years later and rewrote an updated document. GAO came out again
09:16and said in their legal opinion, when an agency submits a document to our office, that is GAO, to our office
09:23under the CRA, we consider that to be the agency's determination that the document is a rule under the
09:30Congressional Review Act. Now again, everyone's glazing over on this because it just seems like
09:35legalese. Why are we even talking about this? Well, because it's been in the news this week.
09:42Because something unique happened. In 2022, the state of California put in a request to the Biden
09:51administration and said, we want to do a rule that's different in our state for electric vehicles
09:58than the rest of the country. Now, you may say, well, they can't do that. Well, actually, interestingly
10:02enough, California can. California is the only state in America because they had environmental rules
10:08even before the Clean Air Act was done. And so California got a waiver basically to say, if your
10:13rules are at least as strong as the Clean Air Act, you can have your own rules, but you have to ask
10:19permission. So that's part of the role of the law that was originally written on the Clean Air Act.
10:26So California approached the Biden administration in 2022 and said, we'd like to have an even stronger
10:32rule on emissions and on vehicles. We want to have a rule that says by 2026, 35% of all vehicles have to be
10:44zero emission or that is electric vehicles by 2026. Now, they asked for this in 2022.
10:51So they said within four years, we want 35% of all the vehicles sold in California
10:57to be zero emission. And by 2035, we want 100% of all vehicles to be electric vehicles to be zero
11:05emission vehicles. Now, they asked for that in 2022. As I mentioned before, the Biden administration took a
11:11look at it. And in 2023, the Biden administration sat down with the GAO, Government Accountability
11:18Office, and they started working on the text for this. And the specific question was, how could we
11:26make sure that this is not a rule? This is an order. And for months, they worked to be able to shape the
11:33language to be able to make sure it was an order, not a rule. And then the Biden administration sat on it
11:43and did nothing with it. In the meantime, 11 other states said, if California does that for electric
11:51vehicles, we're going to do that as well. Because here's the other thing about the law I didn't mention.
11:57The way the Clean Air Act gave permission to California to be able to do their own rules,
12:01the Clean Air Act is also written to say, if other states want to adopt the California rule,
12:07because it's at least as strong as the national, other states could do it. So in the next few months
12:13from 2022 and 2023, 11 other states adopt this rule. Suddenly, this is not a single state issue.
12:22This is a national issue. In fact, it would now affect 40% of all the vehicles sold in America.
12:30This just shifted. This is not about one state anymore.
12:36This is almost half the vehicles sold in America now are going to have a new set of rules.
12:42Biden administration sat on that request. They didn't move on it. Now, they'd gotten their opinion
12:46worked out with GAO in 2023, but they didn't move on it, quite frankly, because the American people hate mandates.
12:53We don't like them at all. We like choice. We like to make our own decisions. I would dare say everybody
13:01in this room uses a different kind of ink pen because we all like our choices and options.
13:07We drive different cars. We wear different colors of ties and different shoes because we like our options.
13:15The Biden administration knew most American people would hate this rule because it suddenly created
13:21a nationwide mandate for what kind of car you could buy, and it had to be electric.
13:29So they sat on it. After the election was over,
13:32in late December of 2024 and into January of 2025, the Biden administration dropped their
13:43quote-unquote order and gave California permission now to be able to do zero emission vehicles.
13:51By 2026, next year, 35% of vehicles that have to be sold across 12 different states were going to have
14:01to be zero emission, which would dramatically change car sales in America. They did it after the election.
14:09That is the very definition of a midnight regulation. That is the very definition of a rule. It meets both
14:16criteria. It's well over $100 million of impact onto our nation and it affects multiple states.
14:25So when the Trump administration came into office, the Environmental Protection Agency immediately re-upped
14:31this and they laid down and said, that's definitely a rule. That's a rule. The agency declared it.
14:39Now it's definitely hit both definitions. The agency declared it's a rule and it's over $100 million of
14:45impact. But then a letter went to GAO. Remember I said in 2023 they had worked with the Biden
14:52administration? Someone in this body wrote a letter to GAO and said, hey, that thing you worked out with
14:59the Biden administration, do you still have that in a file? And GAO sent a letter back and said, well,
15:06we declared this in 2023 just an order because it only affected one state, just California. Here's the problem.
15:17GAO, as I mentioned at the beginning, in their very own legal opinion said, if an agency says it's a rule,
15:27it's a rule, it's a rule. And GAO doesn't even get involved. Literally GAO broke its own legal opinion
15:37to now declare it's an order. Why would they do that? Well, they would do that to prevent this Congress
15:45from speaking to that rule. It would no longer be under the Congressional Review Act.
15:52I told you this was technical. But this was a fascinating little plot that went from 2022
16:01all the way to the present to try to figure out how to get an electric vehicle mandate in America
16:08without ever having a vote in Congress. It was slick. It was well-shaped. Except it was dependent on one
16:18thing. GAO breaking its own legal opinion. I happened to call the leadership of GAO just last week and said,
16:28as far as you know, has GAO ever, ever declared something not a rule when the agency said it was a
16:39rule. And after a moment of silence, he responded, as far as I know, GAO has always deferred to the
16:50agencies until now. They literally broke their own policy. They literally violated their own legal counsel.
16:58So now we're in a quandary. GAO has broken their own legal counsel.
17:09We have an issue that will have well over a hundred million dollars worth of effect
17:14onto the country. It is now a near nationwide mandate on electric vehicle sales across the country
17:22without ever having a vote in Congress. And our Democratic colleague says, you can't change it.
17:33Because we worked a way to be able to fix it so you couldn't. That's not true.
17:42This body worked extensively with the parliamentarian's office.
17:46This body worked extensively across the aisle to be able to have conversation.
17:50Talking with members of the Democratic caucus to say, do you really want to have in your state
17:58a mandate that's sitting there? We don't. Not only that, what will this do to our economy across the
18:06country? This was not about challenging the essence of the Senate. This was not about breaking the
18:13filibuster rule. This was not about going nuclear. This was about confronting an entity that broke its
18:20own rules intentionally to prevent this body from acting. This was the decision to make to say,
18:27can an agency impose on America a mandate that Congress never spoke to? Never.
18:39Or does Congress get to speak to this? I would say to you as a member of the United States Senate,
18:45the United States Congress is the lawmaking body for the country. The United States Constitution begins
18:54with, all legislative power shall reside in a Congress, not in an agency that wants to have electric
19:04vehicle mandates for every American. That's not how it works. So we worked to make sure that we were
19:13clarifying one simple thing. In the Congressional Review Act, in this time, as it has been every
19:22time it's been done, and for every time in the future, this one simple question, when an agency says
19:30it's a rule, is it a rule? It has been every other time until this time, we clarified that one question.
19:38It didn't change the dates of the Congressional Review Act. It didn't change the process. It answered one
19:45question that apparently was in dispute, that was never in dispute before, but now appeared to be in
19:52dispute. When an agency says it's a rule, is it a rule? And we clarified what it's always been. The answer is
20:00yes. It's a rule. And then we acted on that. And this body said, no, we will not have a nationwide mandate
20:12for electric vehicles across the country. By the way, I don't have any opposition to electric vehicles.
20:20If somebody wants to buy an electric vehicle, they should be able to buy that.
20:23I think a lot of them look like great vehicles. Buy it if you choose to. But we're Americans.
20:32This body should not mandate that everyone has to be able to buy one.
20:37This body should make the path that if people choose to buy one, they can. That's setting the
20:44rules of the road, saying, here's the definition of a safe vehicle. Pick any one of those safe vehicles
20:50you want to be able to have. But we just set the rules of the road and then get out of the way
20:55and let people decide which vehicle they want to drive on that road. That's what has happened this
21:01week. Now, I understand there's been a lot of bluster and a lot of trying to redefine what actually just
21:07occurred. But what has occurred this week is choice for the American people and clarification of what
21:16has always been. When an agency says it's a rule, it's a rule. Just like it was last year. Just like it is
21:25now. Just like it will be next year. Technical, but important. Because the American people want to
21:35follow the United States Constitution and know that all legislative powers reside in this body,
21:41not in some other building, somewhere down the street. With that, I yield the floor.