Earlier this month the U.S. Department of Labor (DOL) issued a proposed rule that may turn out to be the first opportunity to test the Congressional Review Act (CRA) post-disapproval restriction on rulemaking.
The CRA authorizes Congress to use an expedited process to nullify recent rules. It has been used successfully 17 times, 16 of which were in the Trump Administration. (The other was at the start of the George W. Bush Administration.) Congressional disapproval does not merely eliminate the disapproved rule, though, it goes further: “A [disapproved rule] may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.” 5 U.S.C. 801(b)(2).
If the disapproval was a hammer, this provision is a spring gun poised to invalidate a future rule. In part because the CRA disapproval measures were only used once before 2017, no agency has moved forward with a rule similar to a disapproved rule. With DOL’s action this month, we’re heading into novel territory.
In March 2017, Congress and President Trump used the CRA to disapprove a DOL final rule issued in the Obama Administration. That final rule was promulgated under a statute that permits states to subject unemployment compensation recipients to drug testing in two circumstances: (1) if the recipient lost their most recent job due to “unlawful use of controlled substances” or (2) if the recipient’s “suitable work . . . is only available in an occupation that regularly conducts drug testing (as determined under regulations issued by the Secretary of Labor).” 42 U.S.C. 503(l)(1)(A). The Obama Administration final rule set narrow parameters for that second circumstance, which was not received well by some Republican members in Congress. (This CRS Insight gives a nice overview of this issue and various views on it.) The CRA disapproval nullified that final rule.
It was a peculiar and ironic choice for a Republican-majority Congress and Republican president to get rid of this rule using CRA disapproval. The Trump Administration could have just re-proposed a broader rule. By taking the CRA disapproval path, yes, they succeeded in nullifying the rule, but it also yielded two other significant consequences: (1) not having a regulation in place, which seriously curtails states’ ability to drug test for unemployment compensation, and (2) casting legal doubt over their eventual effort to regulate in this area because of the “substantially the same” prohibition.
With its action this month, DOL is forging ahead with a new proposed rule, which acknowledges the procedural posture it finds itself in and offers a CRA-related justification in the preamble, starting with: “In this NPRM, the Department now proposes a substantially different and more flexible approach to the statutory requirements than the 2016 Rule, enabling States to enact legislation to require drug testing for a far larger group of UC applicants than the previous Rule permitted.”
Will it be enough? Who gets to decide? What form will that take? I’ll be curious to see how this plays out after the final rule is promulgated.