What is the National Performance Management Measures Rule, and how does it fit into backlash against President Biden’s executive actions? Learn more today.
On Wednesday, April 10th, the U.S. Senate narrowly passed SJ. Res. 61. The bill seeks to block the implementation of a rule by President Biden’s Federal Highway Administration (FHWA). If the rule is blocked, it will mark another blow to the administration’s attempts to reduce greenhouse gas emissions.
Three Democrats, Joe Manchin, Jon Tester, and Sherrod Brown, and Independent Senator Krysten Sinema voted with Republicans. Ultimately, the resolution passed 53-47. This move marks another rebuke against the President’s executive authority. This trend has become a worrying theme for President Biden in his efforts to shape policy via rulemaking. In this blog, we discuss what this rule would do, how the Senate is seeking to nullify it, and what comes next.
What Is the National Performance Management Measures Rule?
In December 2023 the FHWA released its final National Performance Management Measures Rule. The rule requires state departments of transportation to set targets to reduce transportation-related greenhouse gas emissions. Departments must also report on their progress to those targets over time. Notably, the rule did not dictate what those targets must be, only that they must be aimed at reducing emissions.
Republicans characterized the rule as an executive overreach. As a result, many states filed lawsuits asking for the rule to be thrown out. Opponents were rewarded in late March when a Texas judge struck down the rule, blocking it from going into effect at least temporarily. That ruling is subject to an appeal that, if successful, could allow the rule to come into force.
What Did the Senate Do To Oppose the National Performance Management Measures Rule?
Despite the March ruling against the FWHA rule, opponents in the Senate hoped to ensure it was blocked, even if the government were to win an appeal. Their vehicle for this was SJ. Res. 61, a Congressional Review Act (CRA) joint resolution. The CRA gives Congress the ability to overturn recently issued rules. While most legislation requires 60 votes to pass the Senate, joint resolutions require only a simple majority. Because of this, joint resolutions are a useful tool for a party with a slim majority.
This advantage of the CRA proved valuable in this circumstance. Republicans were able to win the support of just a few Senators outside of their party to pass the resolution. The resolution will now head to the House, where the Republican majority will likely support its passage. Unsurprisingly, many CRA resolutions that do pass are vetoed by the President. Biden appears prepared to do so in this circumstance. Opponents likely don’t have the numbers to override a veto, so it may be that SJ. Res. 61 stands little chance of becoming law.
But this legislative activity still matters. It contributes to a growing trend — Republicans are increasingly using the CRA to oppose President Biden’s actions. In some cases, they’re also gaining Democratic support. The President is increasingly reliant on administrative rulemaking to fulfill bold policy promises that are blocked in Congress. Growing opposition has met this trend, both from Republicans and from some in the President’s party.
Both chambers of Congress have passed ten CRA resolutions opposing rules issued by President Biden. However, none have survived the President’s veto pen.
Where Do We Go From Here?
We will see in the coming weeks whether the House follows the Senate’s lead in passing SJ. Res. 61 and whether opponents can muster enough votes to override the President’s veto. The President’s veto will likely stand if the House passes the resolution. You can, of course, follow this activity with timely updates from Plural.
With SJ. Res. 61 unlikely to pass into law, the courts will decide the rule’s future. As of now, the rule has been nullified by the judge’s recent ruling. Whether the administration appeals, and whether that appeal is successful, will determine the responsibility of states to set greenhouse gas emissions reductions targets.
As for the growing use of the CRA, this latest interaction with the Congressional check on executive power offers key reminders. It should serve as a reminder of the vulnerability of executive action should the President lose his bid for a second term this fall. If a Republican, presumably former President Trump, were to win in November, and Republicans held majorities in both chambers of Congress, they would be able to use the CRA to overturn many recent actions taken by President Biden. Without the power of the veto pen, President Biden wouldn’t be able to stop them.
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