Democrats are relying on a recent memo from the Government Accountability Office to argue that President Donald Trump and congressional Republicans can’t pass a bill repealing a Biden-era waiver allowing California to mandate electric vehicles in the state. [emphasis, links added]
But legal experts say the memo—whose authors include a prominent DEI activist—isn’t legally binding and relies on dubious reasoning.
The Government Accountability Office (GAO)—which conducts audits and analyses for Congress but has minimal legislative authority—published the memo earlier this month just two weeks after Democratic senators Adam Schiff (Calif.), Alex Padilla (Calif.), and Sheldon Whitehouse (R.I.) asked it to investigate the issue.
Media outlets then reported that the memo determined a bill to reverse the Biden-era action was “illegal” and that the office, therefore, “blocks” such a bill.
The office’s memo presents a potential roadblock to Trump’s energy agenda, a key tenet of which involves revoking electric vehicle mandates.
Democrats, who cheered the opinion immediately after it was published, may request that the Senate parliamentarian weigh in on the issue and consult the GAO’s opinion.
If Democrats are successful in using the opinion to block the bill, the California electric vehicle mandate can only be overturned through a formal Environmental Protection Agency rulemaking process that would take years to complete and likely attract legal challenges.
However, experts say there are key legal deficiencies in the GAO’s opinion.
“It’s just sloppy work,” Michael Buschbacher, a former counsel at the Department of Justice’s Environment and Natural Resources Division, told the Washington Free Beacon. “I think the goal of what they were doing was to insert themselves in this process.”
The quick turnaround on the document raises questions about the level of involvement from the Democratic lawmakers who requested the opinion—the office usually takes months to complete analyses, not a couple of weeks.
Notably, one of the coauthors of the GAO’s memo is Shirley Jones, the office’s managing associate general counsel.
Jones is an outspoken DEI activist who recently served as the president of the advocacy group Blacks in Government, once applauded former president Joe Biden’s executive order on DEI in the federal workforce, and said in a 2021 interview that women who work in the government face “microaggressions” and are often subjected to “mansplaining.”
In December, in one of its final actions during the Biden administration, the Environmental Protection Agency granted California a waiver under the 1970 Clean Air Act that allows it to issue vehicle emissions regulations that are stricter than federal emissions standards, an action that green-lit the state’s electric vehicle mandate that will kick in later this year.
The waiver allows other states to adopt California’s rules, something 12 states have opted to do.
According to the GAO’s memo authored by Jones, the Biden administration’s action is not subject to a CRA (CRA) resolution because it is a waiver, not a rule or regulation.
The CRA allows Congress to pass resolutions via a simple majority floor vote to reverse actions finalized by federal agencies.
A successful CRA resolution would immediately overturn the Biden-era waiver and California mandate, meaning the Trump EPA wouldn’t have to overturn it through a formal rulemaking process, which could take years and attract legal challenges.
Such a resolution is the Trump administration’s preferred course of action—in February, EPA administrator Lee Zeldin submitted the waiver to Congress for review.
One month earlier, Rep. John Joyce (R., Pa.) introduced the Preserving Choice in Vehicle Purchases Act, a CRA resolution that would overturn the waiver and is poised to receive a floor vote in the near future.
It’s like the [GAO] wrote an op-ed basically…
Buschbacher, the former Justice Department official, noted that the GAO’s opinion fails even to acknowledge Section 177 of the Clean Air Act, the provision that allows other states to adopt California’s standards.
That, according to Buschbacher, makes an EPA waiver a “rule of general applicability” since it has far-reaching nationwide impacts, a bar that it must clear to be considered a “rule” under the CRA.
Buschbacher and Jimmy Conde, who are both partners at the law firm Boyden Gray, wrote a paper this month that argued in favor of Congress’s authority to use the CRA to overturn EPA waivers.
The paper states that the GAO, an unelected part of the federal bureaucracy, does not have the authority to restrict Congress from making law, that it is a longstanding precedent that all actions an agency submits to Congress are treated as rules, and that EPA waivers have nationwide impacts.
“What GAO has previously said is that submission of a rule or an action to Congress—any action to Congress, even when the agency thinks it’s not a rule and submits it only out of an abundance of caution—gets treated as a rule,” Buschbacher said about the GAO’s past opinions.
Ultimately, Buschbacher said the memo should have little impact on Congress’s ability to pass a bill overturning the waiver green-lighting California’s mandate—”it’s like they wrote an op-ed basically,” he told the Free Beacon.
Read rest at Free Beacon
