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'This Is A Bad, Bad Day For The Senate': Sheldon Whitehouse Bemoans Overruling Of Senate Parliamentarian
Forbes Breaking News
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5/23/2025
During remarks on the Senate floor Thursday, Sen. Sheldon Whitehouse (D-RI) spoke about Republicans bypassing the Senate Parliamentarian to overrule California's Clean Air Act waivers.
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00:00
Mr. President, the series of votes that we've concluded in the last 24 hours
00:12
with the last vote that just concluded
00:17
brings to its completion a sad and a sordid moment
00:28
in the history of the Senate.
00:33
And I want to just wrap up to leave a record of what took place.
00:43
Before we got into this parliamentary rigmarole,
00:50
there were two things that were pretty clear.
00:54
One, a Congressional Review Act, a statute in American law
01:04
that allows Congress to override a very narrow set of executive actions
01:17
for a very narrow time period.
01:23
The narrow set of executive actions is APA rulemakings.
01:30
And the time frame is set by the Congressional Review Act.
01:35
But it's at most months.
01:40
That's the law, or was the law until our procedural shenanigans intervened.
01:47
And it had been the law for quite a long time.
01:56
The Congressional Review Act goes back 30 years.
02:00
So there was a long, long, long tradition of obeying this law.
02:07
It's not hard to figure out what a rule is,
02:10
because rulemakings have a very distinct procedural set of steps that they go through.
02:18
And the Congressional Review Act was carefully crafted to deal just with those rules,
02:24
including a provision if the executive branch tried to hide a rule by not submitting it,
02:29
that our Government Accountability Office was authorized to say, blow a whistle,
02:36
say, no, that's actually a rule, in which case it would then have to come over here
02:41
for review under the Congressional Review Act.
02:45
So the question of what a rule was has long been considered
02:49
during the course of the Congressional Review Act and over those 30 years,
02:54
and it has always, always, always, always been a rule.
03:03
Before the Congressional Review Act came along, in fact, 20 years earlier,
03:08
the Clean Air Act was passed by Congress.
03:11
And the Clean Air Act, with a healthy respect for federalism
03:16
and the role of sovereign states and the role of California
03:20
as what is now the fourth biggest economy on the planet,
03:24
allowed California a waiver
03:28
in order to be able to
03:32
make its own clean air auto emissions rules.
03:39
And so beginning
03:40
with the passage of the Clean Air Act,
03:44
California took advantage of this,
03:46
and these waivers
03:48
were filed with the EPA and processed by the EPA.
03:52
Sometimes they created the waiver,
03:55
sometimes they amended a waiver,
03:56
sometimes they renewed a waiver,
03:58
sometimes they modified a waiver.
04:00
The first action was taken on July 11th, 1968,
04:08
by the EPA.
04:09
So, 50-plus years ago.
04:17
And the most recent one until our current procedural rigmarole
04:22
was December 17th, 2024,
04:25
a week before Christmas last year.
04:29
Between July 11th of 1968 and December 17th of 2024,
04:39
California's Clean Air Standard
04:42
was reviewed under this waiver process
04:45
131 times.
04:49
131 times.
04:50
And every single time it was determined
04:54
to be a waiver and not a rule.
04:56
It was never across that half-century plus
05:01
ever treated as a rule.
05:06
It clearly was a waiver.
05:08
It's described as a waiver in the statute.
05:10
That's actually the law.
05:13
So, that's where we stood.
05:18
California had a legal right
05:20
to run its own clean air program for 50 years.
05:26
EPA was obliged to treat it as a waiver.
05:30
And the Congressional Review Act did not apply
05:34
because the Congressional Review Act
05:37
only applied to rules.
05:40
And this was not one.
05:41
The problem was that the fossil fuel industry
05:48
more or less runs this place right now
05:50
and it wants to sell more gasoline.
05:53
So, California's clean air rules
05:55
that make cars be either more efficient
05:57
and get more miles per gallon
05:59
or become hybrid
06:02
and be able to run back and forth
06:03
between gas and electric
06:05
or be fully electric
06:07
interfered with the impulse
06:10
of big oil
06:11
to sell more gasoline
06:13
and, of course,
06:16
do more pollution.
06:20
What was big oil to do
06:22
in that circumstance?
06:23
Well, there were a couple of things
06:24
that they could have done.
06:26
They could have, for instance,
06:29
negotiated with California.
06:32
Indeed, they could have asked the President
06:34
to negotiate with California.
06:38
And perhaps even with states like Rhode Island
06:40
that joined the California clean air standard.
06:43
So we'd be in the room
06:44
and have our voices heard, too.
06:46
There could have been a robust, healthy,
06:49
political, and democratic negotiation.
06:52
But, no.
06:58
Big oil chose not to do that
07:00
because it knew it had a fast lane
07:02
through this body.
07:04
They had another alternative,
07:06
which is to amend
07:09
the Clean Air Act
07:11
or the Congressional Review Act
07:14
to solve this problem.
07:16
You could amend the Clean Air Act
07:18
to call the waiver a rule
07:19
or make it proceed by rule
07:22
or you could amend
07:24
the Congressional Review Act
07:25
so that it wasn't limited to rules anymore
07:27
but a waiver could fit in.
07:30
You could do either one of those things
07:31
by what my Republican colleagues
07:34
usually like to cheer about,
07:37
which is regular order,
07:38
the regular order of the Senate,
07:40
the regular order of Congress.
07:43
Of course, the problem for big oil in that
07:45
was that they'd have to get the law passed
07:48
in the House
07:50
and they'd have to get the law passed
07:52
in the Senate
07:52
and in the Senate
07:54
that would subject it to
07:55
having to negotiate with the Democrats
07:57
in order to get past cloture
07:59
and get 60 votes
08:01
and then get the bill signed
08:03
by the President.
08:05
That's the proper way to proceed
08:07
when you want to amend a law.
08:10
But big oil didn't care to do that
08:14
because it knew it had a fast lane
08:16
through this body.
08:19
The third way they could have done this,
08:22
which was actually commenced
08:24
in the first Trump administration,
08:26
was to have the EPA
08:28
undertake an administrative review
08:31
of the three key predicates
08:34
that have to be checked off
08:37
in order to grant the waiver to California
08:40
and proceed under ordinary
08:44
administrative agency process,
08:48
indeed, one that had already been commenced
08:50
in the previous administration.
08:53
They could easily have done that,
08:55
but of course,
08:57
whatever big oil convinced
08:59
big oil's representative at EPA,
09:03
Lee Zeldin, to do
09:05
would have then had to survive
09:08
scrutiny in court
09:09
because you can't do
09:13
administrative procedures
09:14
in this country
09:15
if there's no rational basis
09:17
for the decision
09:18
at the end of the day.
09:20
You can't do administrative decisions
09:22
in this country
09:23
if they are,
09:24
to use the magic words
09:25
of administrative law,
09:27
arbitrary and capricious.
09:33
So they chose not to follow
09:34
the administrative process either
09:36
because they knew
09:37
they had a fast lane
09:39
through this body.
09:43
Unfortunately,
09:44
the fast lane that big oil
09:45
knew it had through this body
09:47
ran right over
09:49
the parliamentarian
09:52
because the parliamentarian
09:59
is obliged to police
10:02
what is appropriate
10:03
under the Congressional Review Act.
10:06
She is our referee here
10:09
over whether we're doing things legally
10:11
and by the rules or not.
10:15
And she determined,
10:18
which in my view
10:19
was an extremely easy determination
10:20
based on 131 to 0
10:24
in previous waivers,
10:27
never in 30 years
10:28
under the Congressional Review Act,
10:30
something that wasn't a rule,
10:32
and the statutory waiver
10:33
for 50 years
10:35
for California
10:35
in the Clean Air Act,
10:38
hard to do much
10:39
of a stronger case than that.
10:41
So we got a decision,
10:43
a proper decision
10:44
from the parliamentarian
10:46
saying,
10:46
no,
10:48
the special expedited procedures
10:49
of the Congressional Review Act
10:51
don't work in the Senate
10:53
because it would be illegal
10:55
because this is not a rule.
10:57
This is a waiver.
10:59
And it obviously was not a rule.
11:01
It obviously was a waiver.
11:04
So she wasn't wrong.
11:07
But the parliamentarian
11:09
is vulnerable
11:11
to the political power
11:13
of this body.
11:14
This body can overrule
11:16
the parliamentarian.
11:18
The majority can do it
11:20
with a simple 51 votes.
11:24
Imagine a football game
11:26
in which one team
11:27
has more players
11:28
than the other.
11:30
One team commits a foul.
11:35
The ref blows a whistle
11:37
on the foul
11:38
that the majority team committed.
11:41
And the majority team
11:43
gets by vote
11:44
to overrule the referee.
11:48
That is a crummy way
11:50
to go about doing business
11:52
in an orderly,
11:54
deliberative body
11:54
like the United States Senate.
11:56
And that's why
11:57
it happens so rarely.
12:00
Overruling the parliamentarian
12:02
on a matter
12:03
is considered
12:04
going nuclear.
12:07
Going nuclear.
12:08
And this
12:10
is the first time
12:12
in the history
12:12
of the Senate
12:13
in which the majority
12:15
has gone nuclear,
12:19
overruling
12:20
the parliamentarian
12:21
on a matter
12:23
affecting legislation,
12:26
both
12:27
the Congressional Review Act
12:29
and the Clean Air Act.
12:32
So the complex
12:33
procedural rigmarole
12:35
you saw last night
12:37
and today
12:38
and today
12:38
was all designed
12:40
to do a parliamentary
12:42
end run
12:42
around the parliamentarian
12:45
overruling
12:47
the determination
12:48
that this was not a rule,
12:50
changing
12:51
the Congressional Review Act
12:53
and
12:53
the Clean Air Act,
12:55
but without
12:56
the proper procedures
12:58
under the Constitution
12:59
that we're obliged
13:00
to follow
13:01
when we're passing
13:02
or amending laws.
13:03
there's a particular
13:07
other problem
13:08
here,
13:09
which is that
13:11
if they'd gone
13:13
the
13:14
negotiation route
13:16
with California,
13:18
all of us
13:19
who like
13:19
clean air
13:20
and want
13:21
strong
13:23
vehicle emissions
13:25
regulations
13:26
would have had
13:27
a voice.
13:29
Something would have
13:30
had to have been
13:31
agreed to.
13:31
There would have had
13:32
to have been
13:33
some compromise.
13:35
But Big Oil
13:35
didn't want that
13:36
because they knew
13:37
what they had here
13:37
in the Senate,
13:38
a fast lane
13:39
to whatever they want
13:41
whenever they wanted.
13:44
They could have gone
13:45
through the court process,
13:46
but the court process
13:47
is bounded
13:48
by laws,
13:50
by fair procedures,
13:53
by the opportunity
13:54
for effective parties
13:55
to be heard
13:56
and by the standards
13:58
of having a rational
14:00
basis
14:00
and not being
14:01
arbitrary and capricious.
14:04
In this forum,
14:06
the majority
14:07
can have
14:08
no rational basis
14:10
and be 100%
14:12
arbitrary
14:13
and capricious
14:14
and ram
14:16
its view
14:18
through.
14:18
and so
14:20
the court thing
14:23
wasn't quite
14:24
as appealing
14:25
because what
14:26
has happened here
14:27
would by any standard
14:29
have had
14:30
no rational basis
14:31
and been
14:32
arbitrary
14:33
and capricious.
14:37
Or they could have
14:38
gone the legislative route
14:39
and passed
14:40
the bill
14:41
properly,
14:42
amended the bill
14:42
properly,
14:43
and used
14:43
the constitutional
14:44
procedures.
14:45
But again,
14:47
we would have
14:47
had a voice
14:48
in that.
14:49
So this ram job
14:51
was the solution.
14:55
Rolling over
14:56
and overriding
14:59
the parliamentarian
15:00
was the method
15:01
and serving
15:03
the fossil fuel
15:04
interests
15:05
behind the Republican
15:06
party
15:06
was the goal.
15:10
But the outcome
15:11
is going to be
15:13
bad outside
15:14
the chamber
15:15
and it's going
15:16
to be bad
15:17
inside the chamber.
15:18
Outside the chamber
15:19
the bad outcome
15:20
is going to be
15:21
a lot dirtier air,
15:24
a far worse
15:25
competitive position
15:26
for our auto industry
15:27
against China
15:28
which is already
15:29
running ahead of us
15:30
in the future
15:32
technology
15:34
of electric vehicles,
15:35
and worse
15:39
health outcomes
15:40
particularly in busy areas
15:42
where there's
15:43
lots of traffic.
15:45
Not to mention
15:46
having the majority
15:47
of the country's
15:48
economy
15:49
overruled
15:51
by a minority
15:52
of the country's
15:53
economy
15:53
where the majority
15:55
of the country's
15:55
economy chose
15:56
cleaner air.
15:58
So those are all
16:00
the bad things
16:00
that happened
16:01
outside this body.
16:04
and as Senator Schiff
16:08
said earlier
16:09
that will be measured
16:11
in things like
16:11
cancer diagnoses.
16:14
This gets personal
16:15
pretty quickly
16:16
when it's clean air
16:18
and health matters.
16:21
Inside the body
16:22
we have just opened
16:24
an entirely new avenue
16:26
for mischief.
16:28
It could be
16:30
mischief by any
16:32
30 of us.
16:33
Frankly,
16:33
it could be mischief
16:34
by a minority
16:35
of the majority
16:36
who want to drive
16:38
something through
16:39
that most of the
16:40
majority don't want.
16:41
But they can do it now
16:42
using the
16:43
Congressional Review Act
16:45
which requires
16:45
30 signatures
16:46
to get in.
16:49
And you can go back
16:50
to any
16:51
executive action
16:54
taken since the
16:56
passage of the
16:56
Congressional Review Act
16:58
and you can drop
17:00
that into the
17:00
Federal Register
17:01
and submit it here
17:02
and say it's a rule
17:04
and even if you're
17:06
lying,
17:06
even if it is not
17:07
a rule,
17:09
we've just opened
17:10
the gate
17:11
so that every
17:13
executive action
17:14
ever taken
17:15
can now be
17:16
considered a rule
17:17
whether it is
17:18
or not
17:18
for purposes of
17:20
the Congressional
17:22
Review Act.
17:24
And a powerful
17:25
special interest
17:26
that controls
17:28
a powerful
17:29
party
17:29
can ram
17:31
whatever it wants
17:32
through this body
17:33
without constitutional
17:34
procedure,
17:35
without judicial
17:36
safeguards,
17:37
and without
17:38
compromise.
17:41
So they broke
17:43
wide open
17:44
the window
17:45
of
17:47
what
17:48
can be brought
17:50
through the
17:50
Congressional Review Act
17:51
in time
17:52
used to be
17:55
just a matter of
17:56
usually just a couple
17:58
of months,
17:59
depends on the change
18:00
in elections,
18:00
but 60 days
18:01
or thereabouts.
18:03
Now,
18:05
30 years
18:06
of stuff
18:07
is available
18:08
to be dropped
18:09
into the hopper
18:09
in this process
18:10
and shoved
18:11
through this body.
18:14
And the other is
18:15
that it's not rules
18:16
anymore.
18:17
It's anything.
18:18
So we've gone
18:20
from a very narrow,
18:22
carefully guard-railed
18:24
provision
18:24
to provide
18:26
a short-term
18:28
opportunity
18:29
for Congress
18:30
to overrule
18:31
an offending
18:32
legislation
18:32
immediately
18:34
after that
18:35
regulation
18:35
is passed
18:37
to a
18:38
wide-open
18:39
sewer
18:40
for political
18:43
influence
18:43
and interference
18:44
into any
18:46
executive decision
18:48
ever rendered
18:50
that can be
18:51
pulled out
18:51
of the past,
18:52
dropped into
18:53
the Federal Register,
18:55
submitted over here
18:56
under the pretense
18:57
that it is a rule,
18:58
and with 30 votes
18:59
and a majority
19:00
behind it,
19:00
off you go
19:01
to the races.
19:02
So this is a
19:04
bad, bad day
19:05
for the Senate.
19:07
It signals
19:08
a willingness
19:08
of this majority
19:10
after so much
19:12
talk about
19:13
defending the
19:13
filibuster,
19:14
oh, defending
19:14
the filibuster,
19:16
when we were
19:16
in the majority
19:17
you never heard
19:18
them stop talking
19:19
about how important
19:20
the filibuster was.
19:21
But now that
19:22
they're in the majority
19:23
it's only a little
19:23
over 100 days
19:24
and this started
19:25
some time ago,
19:26
they immediately
19:27
started the plot
19:28
to bring this
19:29
chore for the
19:30
fossil fuel funders
19:32
through the Senate
19:33
floor
19:33
and break
19:36
the filibuster
19:37
in order to
19:38
accomplish their goal.
19:40
So
19:40
give me
19:42
a break.
19:45
I yield the floor.
19:47
I see my friend
19:47
Senator Cassie
19:48
from Louisiana
19:48
waiting to speak.
Recommended
26:44
|
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