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Drug Testing Rule Upends Conventional Wisdom on CRA’s ‘Substantially the Same’ Provision

Statement of Amit Narang, Regulatory Policy Advocate, Public Citizen

Note: Today, the U.S. Department of Labor finalized a rule requiring job seekers who receive unemployment benefits to pass a drug test. This version of the rule applies to more benefit applicants than an earlier version of the rule that was repealed in March 2017 through the Congressional Review Act (CRA) process. The CRA contains a provision barring agencies from issuing rules that are “substantially the same” as those repealed.

Drug testing job seekers as a precondition of receiving unemployment benefits is unnecessary and wrong. But the Labor Department’s rule proves that agencies have ample authority to issue new regulations even when prior versions have been repealed through the CRA. Moreover, it shows that subsequent rules can be more stringent than those previously repealed.

The Trump administration is arguing that its drug testing rule is “substantially different” from the repealed version because it expands testing to “a far larger group of unemployment compensation applicants than the previous rule permitted.” But this claim rebuts conventional wisdom that the CRA categorically stops agencies from reissuing repealed regulations – and opens the door for agencies to bring back repealed safeguards in stronger form. At a minimum, the CRA’s “substantially the same” provision is hardly the obstacle to re-regulating that conservatives imagine it to be.

Public Citizen supports the Sunset the CRA and Restore American Protections Act (SCRAP Act), which would repeal the deeply flawed CRA and reinstate numerous protections that Americans lost early in the Trump era. If Congress doesn’t pass the SCRAP Act, the next administration should make restoring CRA-repealed safeguards – including broadband privacy protections, the forced arbitration rule and the stream protection rule – a top priority.