Tools at Democrats’ Disposal
By 
Will Chuck and the rest of the Senate Democrats actually use the tools at their disposal to fight against Trump’s budget? Or will they Democrat and cave?
It’s refreshing in a way that we no longer have to spend much time thinking about the Senate parliamentarian, the shadowy figure whose rulings supposedly decide what the chamber can and cannot do. Republicans put that to bed last week by overruling the parliamentarian over whether a Congressional Review Act (CRA) resolution could nullify the Environmental Protection Agency’s waiver allowing California to set its own air pollution standards on vehicles.
California was given authority in a carve-out to the Clean Air Act in 1970 to set higher emissions standards than the national rules, with the EPA subsequently granting waivers more than 100 times. The state was prepared to use its latest waiver to effectively ban gas-powered auto sales by 2035. But the Senate voted 51-to-44 last week to cancel that waiver, as well as two other waivers to tighten emission rules on diesel trucks and allow zero-emission trucks on the road. The House had already voted for the resolution, so it can now be signed by President Trump.
Only executive branch agency rules can be overturned by a CRA resolution, and only within 60 legislative days after being presented to Congress, in an up-or-down vote that avoids the Senate filibuster. The Senate parliamentarian, joining the auditors at the Government Accountability Office, said that the EPA waivers were not “rules” as defined by the CRA, and therefore couldn’t be put into a resolution. Sen. Mike Lee (R-UT), in a communication he sent last Congress about these very EPA waivers, agreed that the “federal preemption waivers cannot be reviewed under the Congressional Review Act.”
Yet Senate Republicans said, “Tough, we’re doing it anyway.” And Lee voted with them.
California has already announced that it will sue to maintain its waiver, charging that the Senate had no authority to overturn it. But the Senate operates largely on precedent, and now that the parliamentarian has been disregarded on this point, virtually any action the executive branch takes could be construed as a rule, and therefore subject to fast-track congressional review.
For this reason, Democrats could subject the Senate to time-consuming resolution votes repeatedly, to such a degree that the Senate would not have time to do anything else for the rest of this session of Congress. In other words, Democrats could respond to the waiver vote by paralyzing the Senate, and stopping the giant Trump tax bill from ever reaching the floor.
Georgia State University assistant professor and former House Oversight Committee staffer Todd Phillips laid this out in a Prospect piece earlier this month. Any 30 senators can force a CRA resolution onto the floor, with a required ten hours of debate time. These resolutions would need the president’s signature, and nearly all of them wouldn’t even get the Republican votes necessary to pass the Senate. But according to Senate procedure, they have to be dealt with if enough senators force them onto the floor. They must be debated and voted upon ahead of other Senate business if brought up for consideration. This means that Democrats can tie up the Senate floor for upwards of ten hours with any single CRA resolution.
But what about our comity? Plus I heard that Bill Cassidy told Chuck Schumer while in the Senate gym that he’s not completely comfortable with everything Trump is doing so I think we all know that there’s no reason to use the tools at our disposal to stop the budget…..