Julia Demaree Nikhinson/AP Photo
Senate Minority Leader Chuck Schumer (D-NY) speaks to reporters at the Capitol, May 20, 2025, in Washington.
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.
Democrats could go back in time to invalidate prior agency actions.
The deregulatory Trump administration isn’t writing a whole lot of rules, limiting the raw material for these kinds of votes. But the Republican vote on EPA waivers just widely expanded the options for a CRA resolution. If the Department of Health and Human Services grants a state waiver for changes to its Medicaid program, or if the U.S. Department of Agriculture does the same for the Supplemental Nutrition Assistance Program (SNAP), Democrats could write resolutions to overturn such waivers. If the Federal Communications Commission issues a broadcast license, or the Justice Department approves a merger, or if the Securities and Exchange Commission decides to defer a prosecution in an investor protection case, Senate Democrats could challenge it. If the Department of Defense inks a contract for a new weapons system or any other item for procurement, they could challenge that, too. Any decision to redirect funds, change the terms of grants, or make practically any decision at all could, under the theory just enshrined into the Senate rulebook by Republicans, lead to a CRA resolution and ten hours of debate.
Democrats could also go back in time to invalidate prior agency actions. The structure of the CRA is that the 60-legislative-day clock for disapproving of a rule starts only when it is submitted to Congress. Waivers haven’t typically been submitted under CRA procedures, because they weren’t considered rules. (This is why the EPA waivers were available for a vote, despite the 60-day legislative clock expiring on May 8.) So there are all kinds of other waivers and agency decisions that never got sent to Congress, and therefore could be put up for a CRA resolution.
The bottom line is this: If you found something like 1,000 current or former agency actions—a reasonable number considering all the work executive branch agencies do—you would probably have enough to keep the Senate debating and voting on CRA resolutions through the duration of this Congress.
That means the Senate would never have the ability to take up executive branch or judicial nominations, or legislation like the One Big Beautiful Bill Act that recently passed the House. Senate Democrats could put the chamber into permanent gridlock, and thereby save 14 million people from losing their Medicaid coverage, save millions more from loss of SNAP benefits, while also forcing the 2017 Trump tax cuts to expire. That’s the level of hardball that can be played here.
You don’t even have to introduce 1,000 CRA resolutions. Just a handful deployed at strategic moments would get the point across. And the prospect of more could be used by Democrats as leverage to get legislative changes or prevent other legislative harms, particularly in the budget mega-bill.
Importantly, Senate Democrats already know this. In a letter sent to Senate Majority Leader John Thune (R-SD) before the EPA waiver vote, Minority Leader Chuck Schumer (D-NY) and several others made this very point: “If the current Senate Majority were to open this door, the CRA could be weaponized to retroactively invalidate decades of agency actions, and effectively hijack the Senate floor.”
Sen. Alex Padilla (D-CA) underscored this after the Senate vote, saying that when Democrats regain control of the Senate, “every agency action that Democrats don’t like—whether it’s a rule or not—will be fair game, from mining permits and fossil fuel projects to foreign affairs and tax policies.” But he’s wrong that Democrats have to wait. As they need the support of only 30 senators, they can force these votes from the minority.
In those ten-hour debates such actions would force, Senate Republicans should be put on the record on whether they agree with Trump’s restructuring of the federal government. If Robert F. Kennedy Jr. decides to change the vaccination schedules recommended for children, Senate Republicans should have to go on the record about whether they agree. Republicans have escaped accountability for these kinds of harmful activities, and by forcing the Senate to weigh such actions, Democrats wouldn’t have to continue to let them off the hook.
I asked Phillips on Monday whether he had gotten any feedback from Democrats in Washington about his idea. He hadn’t. But we know they’re aware of it; they have said it out loud. They could start the campaign any day now.
The sanctity of Senate procedure doesn’t mean much to me. Using a majority vote for killing the EPA waivers certainly erodes the minority veto that is the filibuster. But I’m fine with a Senate majority having more power than the parliamentarian; that’s far more accountable than our current, disjointed reality, and ultimately will be good for Democrats when they return to full control of the government.
The likely outcome of weaponizing the Republican decision and twisting Senate procedure to make the chamber nonfunctional is that it would compel some détente to step away from mutually assured destruction. That would be a better situation than the “filibuster everything” mentality we have today.
And given the high stakes of the budget bill—soaring inequality as benefits for the poor are slashed to finance tax cuts for the rich—every tool at Senate Democrats’ disposal should be employed. Republicans just handed them a big one.
