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. 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—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 is “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 Government Accountability Office’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.
But experts say there are key legal deficiencies in the Government Accountability Office’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.”
And 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 Government Accountability Office’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 Government Accountability Office’s memo authored by Jones, the Biden administration’s action is not subject to a Congressional Review Act resolution because it is a waiver, not a rule or regulation. The Congressional Review Act allows Congress to pass resolutions via a simple majority floor vote to reverse actions finalized by federal agencies.
A successful Congressional Review Act 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 Congressional Review Act resolution that would overturn the waiver and is poised to receive a floor vote in the near future.
Buschbacher, the former Justice Department official, noted that the Government Accountability Office’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 Congressional Review Act.
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 Congressional Review Act to overturn EPA waivers. The paper states that the Government Accountability Office, an unelected part of the federal bureaucracy, does not have the authority to restrict Congress from making law, that it is 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 in reference to the Government Accountability Office’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.
The Senate parliamentarian has no formal role in the process but has historically advised Congress based on the Government Accountability Office’s opinions. Since the EPA hasn’t overturned its prior positions, that should not pose an obstacle, Buschbacher said. If the parliamentarian were to conclude otherwise, however, “that would essentially change the rules in the middle of the game and put things into uncharted territory.”
“The plain text of the [Congressional Review Act] 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,” said Kenny Stein, the vice president of policy at the American Energy Alliance. “There is no provision in the [Congressional Review Act] that GAO must first signal approval prior to Congress acting under the [Congressional Review Act].”
Mike McKenna, a Republican energy lobbyist who worked in the White House during the first Trump administration, said he gave the Government Accountability Office an “A-minus for creativity. D for execution.”
“It’s like they’re trying to confirm the idea that the deep state is a legit threat,” he told the Free Beacon.
“You have clear agreement between the executive branch and legislative branch,” an energy industry source told the Free Beacon. “That’s sort of the deep state, the blatantly political angle that you have here. Three Democratic senators said, ‘Hey, GAO, what do you think, even though you don’t have a role to play?’ And lo and behold, they miraculously had a pre-baked 10-page memo.”
