Guiding and Establishing National Innovation for U.S. Stablecoins Act--

Floor Speech

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Mr. WHITEHOUSE. I am actually happy to yield to Senator Schiff from the California delegation. OK. He is happy with me going, so I will go.

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Mr. WHITEHOUSE. Mr. President, first, both of my colleagues from California are here, and I want to thank them for coming to the floor today to talk about this important matter in which Republicans want to appease their donors, and they want to break basically two Senate rules in order to get there--not just one, but two.

The underlying matter here is about a law, the Clean Air Act, which falls in the jurisdiction of the Environment and Public Works Committee. So that is why I am here.

A different law, the Congressional Review Act, creates a fast-track procedure in the Senate to disapprove Agency rules.

For the most part, that Congressional Review Act, the CRA, is focused on rules during a short period immediately after they are made final and before they go into effect. We get a window where we can disapprove a rule from Congress.

As soon as an Agency finalizes the rule, it submits the rule to the Government Accountability Office and to both Houses of Congress. That starts a 60-day review clock. That CRA also provides a lookback period where a Congress can reach back into the final 60 days of a previous Congress and review rules from a prior administration.

The waivers go way back before the CRA period. Generally, there is no question what constitutes a rule under the CRA. There are different acts that the government can do. There are decisions; there are rules; there are laws.

A rule is a specific thing under the CRA. Sometimes there are problems. Sometimes Agencies don't submit actions to Congress that have typically been deemed rules, and sometimes, as here, they submit as rules actions that have never previously been considered rules.

GAO polices whether the submitted action was, in fact, a rule. That is the law. That is a GAO legal responsibility. GAO has weighed in about 60 times in the history of the Congressional Review Act. When GAO determined that the action involved was a rule, the action was then deemed submitted and the review clock started.

When GAO determined the action was not a rule, that was the end of it. Congress stood down. No one--no one--moved a CRA resolution of disapproval following a negative finding by the GAO. Never.

Which brings us to this first oddity. In 2023, Members asked GAO whether an EPA Clean Air Act waiver decision for California was a Federal rule for purposes of the CRA. GAO said, no, correctly, because it wasn't.

Like every other time, that settled that. And GAO's ``no'' comported with the text of the CRA and the waiver provision originally in the Clean Air Act that created the California exception and 50 years of Agency precedent treating waivers as decisions, a different type of adjudication which the Administrator Procedure Act distinguishes from rules.

EPA itself, across multiple administrations, Republican and Democrat, never, never called waivers rules under the CRA, not even under the first Trump administration.

Then, in February, after much lobbying by the oil industry, the Trump EPA submitted notices of three waiver decisions, one from more than 2 years ago, far beyond that 60-day lookback period. Upon a request from the three of us, the two Senators from California and myself as ranking member, GAO confirmed its previous 2023 opinion not long ago--this is not ancient history--and found that notwithstanding EPA's politically motivated submissions to try to get into that CRA window, the California waivers simply are not rules. So the CRA does not apply.

GAO pointed out to EPA that the waiver notices, on their face, indicate that they are decisions rather than rules. But that wasn't enough, so we had to go to the Parliamentarian, who heard arguments and debate from both sides, and the Parliamentarian affirmed GAO's decision.

I will offer the opinion that it was not even a close call because the unblemished record has always been that this is not a rule over decades.

The Parliamentarian ruled that Clean Air Act waivers do not qualify for expedited consideration under the Congressional Review Act. Every other time the Senate has reached this point, every other time, Members have respected the decision of the Parliamentarian and that ended the matter. Not this time.

This time, a faction in the Republican Party wants to overturn decades of precedent, ignore the GAO and the Parliamentarian, who are the lawful guardians of this process, and steamroll forward in violation of the plain text of the Congressional Review Act by deploying the nuclear option.

Once there is precedent that anything an Agency does can be considered a rule, the time and scope limits of the Congressional Review Act have no meaning. Any Agency action ever could be swallowed up in the new Congressional Review Act definition.

Think about how the Trump administration might abuse this. At least one Member of this body previously asked GAO if FDA's decision to allow pharmacies to dispense mifepristone qualified as a rule for the purposes of the CRA. GAO said no, and it ended there. If we overrule GAO and the Parliamentarian on the waivers, nothing stops the Trump FDA from submitting the decision as a rule and Members from introducing a disapproval resolution and proceeding through this new loophole.

Everyone knows by now that President Trump has a beef with a whole host of media outlets, some of which are licensed by the Federal Communications Commission. What is to stop the FCC from submitting, say, CBS's license as a rule? And Members from introducing a disapproval resolution? Is this really the path we want the Senate to go down?

A future Democratic administration could submit every oil and gas lease issued since 1996 as a rule and pursue disapproval of them under the Congressional Review Act.

Colleagues, we have already given away too many article I powers to the executive branch, do we really want to give the executive branch this power to submit anything and everything as a rule and allow Members to hijack the floor with CRA resolutions? That would be a new way for this Senate to work.

Then there is the question of overruling the Parliamentarian, the nuclear option. The import of overruling the Parliamentarian extends way beyond Congressional Review Act resolutions. Once you have overruled the Parliamentarian on a legislative matter, there is no going back. All bets are off.

Any future majority would have precedent to overrule the Parliamentarian on any legislative matter. There is no cabining such a decision. It is tantamount to eliminating the filibuster. Once ``you give a mouse a cookie,'' it never ends.

Pretend all you want that these waivers are exceptional or that any precedent overruling the Parliamentarian would be limited. That is not the way it works. Soon, some Members will think their thing is exceptional and push to use this precedent, and on and on it will go, if you give the mouse the cookie.

You would be upending 50 years of treating preemption waivers as Agency decisions and not rules, 30 years of deferring to the GAO and the Parliamentarian on what constitutes a rule for purposes of the Congressional Review Act, and centuries of Senate precedent and procedure--all that while there is actually another path.

In 2019, the first Trump EPA used the administrative process, the Administrative Procedures Act, to withdraw a previously granted Clean Air Act waiver that permitted California to set car standards.

So I ask my Republican colleagues: Is this worth it? Is it worth going nuclear in the Senate to accomplish something that the EPA could try to accomplish under the Administrative Procedures Act on its own? Is it worth going nuclear, knowing full well the Pandora's box this will open?

I will close with the advice my colleague from California shared from the majority leader, the senior Senator from South Dakota. He said earlier this year that overruling the Parliamentarian would be--and I quote him--``totally akin to killing the filibuster. We can't go there. People need to understand that.''

So, please, do understand that, and don't go there.

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