Sen. Joe Manchin’s threat to sue the Biden administration over its electric vehicle tax credit rules might be an empty one.
Manchin, a West Virginia Democrat and chair of the Energy and Natural Resources Committee, last week said he’s “willing to go to court” if the Treasury Department implements the EV tax credit changes in the Inflation Reduction Act in a way he opposes.
The day after Manchin’s threat, Treasury proposed a regulation to implement the law. The mercurial moderate was not happy.
Manchin was the chief architect of provisions to encourage mining and manufacturing in the United States and its trading partners with new limits on the credit, worth up to $7,500, but thinks the administration is bending the law to promote EV sales.
Still, Manchin likely won’t be able to sue Treasury when the regulation is finalized at some point later this year, experts told E&E News. While automakers, miners and other companies may be able to show harm from the rule, the courts generally haven’t extended that standing to lawmakers, attorneys said.
“Senators generally don’t suffer any particularized injury in fact that would give them standing to sue when the president doesn’t implement the law the way they prefer,” said Sean Marotta, a partner at Hogan Lovells who specializes in appeals.
Manchin’s main objection to the proposed guidance is that it would allow too much vehicle manufacturing to be classified as “processing” and happen outside of North America while potentially getting the tax credits.
Even though Treasury’s proposal is expected to greatly reduce which vehicles can get the EV tax credit when compared to the time before the Inflation Reduction Act passed, Manchin said it did not go far enough. Final guidance is set to take effect April 17.
“It is horrific that the administration continues to ignore the purpose of the law, which is to bring manufacturing back to America and ensure we have reliable and secure supply chains. American tax dollars should not be used to support manufacturing jobs overseas,” Manchin said last week.
Pat Parenteau, an emeritus law professor at the Vermont Law and Graduate School, said the senator doesn’t have individual standing in light of a 1997 Supreme Court ruling, Raines v. Byrd, in which the justices ruled 7-2 that an individual congressman failed to show personal injury from a law, distinct from the institution of Congress.
Standing, Parenteau explained, is required under the Constitution, and courts only have the authority to hear cases from individuals or entities that have a personal stake in the outcome of a case, different from the general public.
“I think it’s the controlling rule, so I don’t think individual members of Congress can sue when the executive branch adopts a rule that they think is illegal,” said Parenteau. “Congress has an interest; he doesn’t.”
Manchin as a member of Congress faces an uphill battle, even if the senator is unhappy with the law he helped write, Parenteau said. The senator, he said, doesn’t have a qualm that’s any different than other lawmakers.
Courts, he added, take a narrow view of standing in disputes brought by legislators against the executive branch.
Parenteau noted that there have been novel instances when a lawmaker has been able to sue to force a government agency to disclose information in connection with a congressional investigation.
He pointed to a 2020 decision from the U.S. Court of Appeals for the District of Columbia Circuit, Maloney v. Murphy.
But that case differed from Manchin’s situation in important ways. House Oversight and Reform Committee members sought information from the General Services Administration that, they argued, they were entitled to under a specific law.
Asked about arguments that Manchin doesn’t have standing to sue, his spokesperson Sam Runyon said the senator would use whatever options he has to fight the administration.
“Chairman Manchin believes strongly that the Department of the Treasury is breaking the law with their implementation of the Inflation Reduction Act, and he continues to explore every possible option to hold their feet to the fire,” Runyon said.
One option Manchin could use is to file an amicus brief if another party, like an automaker or mineral company, challenges the regulation in court. There is a long history of lawmakers filing amicus briefs, including on legislation they helped write.
That could make a big difference for judges considering such a lawsuit, said Kelly Johnson, a partner at Holland & Hart and a former counsel for the Energy and Natural Resources Committee.
“You could see how a declaration from Sen. Manchin saying, ‘This is what we meant.’ It matters a little bit more because of how he postured himself with that legislation,” she said, comparing him to other lawmakers who might weigh in.
Johnson said Manchin holds other tools that could influence the Biden administration. He leads a committee that doesn’t have power over Treasury, but could still be influential.
“He is a chairman, and a chairman has lots of authority to make an administration’s life difficult, everywhere from holding oversight hearings … to considering nominations,” she said.
“He has lots of ability there to just make mischief in a way that you would not usually associate with a chairman of the same party as the president.”
The Energy and Natural Resources Committee currently has three nominations pending before it, and Biden could soon tap a nominee for the vacant Federal Energy Regulatory Commission spot. Manchin is responsible for scheduling hearings and votes on those picks.
He’s already shown his willingness to flex his muscles on the president’s selections. Manchin recently announced his opposition to Laura Daniel-Davis, Biden’s nominee to be the Interior Department’s assistant secretary for land and mineral management, over an offshore drilling issue related to the Inflation Reduction Act, and opposed the confirmation of IRS Commissioner Daniel Werfel over that agency’s handling of Inflation Reduction Act-related tax changes.
Outside of the committee, there are numerous reasons the administration might want to listen to Manchin. He’s a key swing vote in a closely divided Senate, and one of the most at-risk incumbent Democrats in next year’s elections.
“He’s not just a regular senator,” Johnson said. “He has made it clear that he is willing to come out and use that leverage that he has.”