Congress, Not the GAO, Gets to Decide on the California Waiver

On Thursday, the Government Accountability Office released a memo responding to an inquiry from several Democratic Senators regarding waivers for California under the Clean Air Act and the Congressional Review Act. This memo was inaccurately reported by some outlets as suggesting that a CRA vote on a California waiver decision would be “illegal” or that the memo “blocks” Congress from voting to disapprove of the waiver grant. 

This reporting fundamentally misstates the nature of GAO and completely misunderstands the text of the CRA. Nothing in the text of the CRA empowers GAO, it has no statutory role to play in the CRA process. Legally, there is no difference between the GAO weighing in on the CRA process and the Democratic Senatorial Campaign Committee commenting on the CRA process. Further, even if it did, GAO works for Congress; it has no power to bind or direct congressional action. Once an agency action has been submitted to Congress for review under the CRA, Congress, and Congress alone, is the decision maker. Congress should vote to disapprove of the California waiver for its Advanced Clean Cars II program, which includes a ban on internal combustion engine vehicles. 

The plain text of the CRA is very clear that once an agency action is submitted to Congress for review, Congress has the unreviewable power to consider and, if desired, disapprove of that action. The CRA requires a resolution of disapproval to be passed by both houses and signed by the president, which makes it binding federal statute under the Constitution, and the CRA withdraws any decision by Congress under the statute from court jurisdiction, stating “No determination, finding, action, or omission under this chapter shall be subject to judicial review.” There is no provision in the CRA that GAO must first signal approval prior to Congress acting under the CRA.

In an in-depth review of this issue for the Yale Journal of Regulation, Michael Buschbacher and Jimmy Conde explain GAO’s role: 

“A GAO advisory opinion that a submitted action is not a ‘rule’ subject to the CRA does not affect Congress’s unchallengeable power. GAO opinions have no formal legal effect and are not even something that the CRA authorizes or contemplates. As the CRS explains, they are part of an informal and ad hoc process that Congress developed to help monitor agencies’ attempts to evade CRA review by not submitting actions to Congress. This informal process allows a lawmaker to request an opinion from the GAO on whether an agency action withheld from Congress is in fact a ‘rule’ of ‘general applicability’ that the agency had to submit. If the GAO opines that it is, then Congress has historically treated this opinion’s submission to Congress as constructive submission of the action, which then starts the 60-day period for review under the CRA.” 

Both GAO and the Congressional Research Service are clear about this advisory, non-statutory role, as the above article further explains:

“The GAO, through its General Counsel, has testified to the Senate that the CRA does not give the GAO any power ‘to decide what a rule is’ and that the CRA only authorizes the GAO to act ‘in [its] role as adviser to the Congress’ on this question. The CRA’s text reinforces the GAO’s view of its advisory role because that statute never purports to empower the GAO—or anyone else—to decide for Congress what agency actions Congress may review. See also CRS R45248 (concluding that GAO opinions are merely advisory) and CRS IF11096 (recognizing that the GAO process ‘has developed outside the statute’). There is simply no basis in law to argue that the informal role Congress gratuitously assigned the GAO to increase agency accountability can somehow be turned on its head to insulate submitted agency actions from CRA review.”

This state of affairs makes perfect constitutional sense. Congress makes the laws, and Congress gets to decide what laws it makes. A memo from the GAO cannot stop Congress from passing a law.

The California waiver is a perfect example of why the Congressional Review Act was created in the first place. California’s ACC II program is a sweeping, nationwide reordering of the motor vehicles market. Indeed, the EPA itself has never been granted the power by Congress to do what California is attempting to do with its electric vehicle mandate. The Biden administration approved this massive power grab through the back door with the waiver process precisely to circumvent Congress. The CRA sought to reassert Congress’s role in the regulatory process, and this is a golden opportunity to do so.

The California waiver is an integral part of the Biden administration’s three-pronged de facto electric vehicle mandate. While there is a regulatory process for withdrawing the waiver, it is a long and uncertain path that will impose compliance costs and market disruptions while the decision winds its way through the courts. A CRA disapproval resolution from Congress, however, definitively ends California’s overreaching attempt to tell Americans what kind of cars they are allowed to drive. Congress can and should shut this adventurism down with all haste.