Rule Upends Conventional Wisdom on the Congressional Review Act

Nov. 2, 2018

Rule Upends Conventional Wisdom on the Congressional Review Act

Statement of Amit Narang, Regulatory Policy Advocate, Public Citizen’s Congress Watch Division

Note: Today, the U.S. Department of Labor proposed a rulemaking (PDF) conditioning receipt of unemployment benefits on testing for unlawful substances. This version of the rule applies to more benefit applicants than an earlier version that was repealed in March 2017 through the Congressional Review Act (CRA) process. The CRA contains a provision barring agencies from issuing rules that are “substantially the same” as those repealed.

While Public Citizen opposes testing job seekers for substance abuse as a precondition of receiving unemployment benefits, this proposed rule from the U.S. Department of Labor (DOL) proves that agencies have ample authority to issue new regulations when prior versions have been repealed under the Congressional Review Act (CRA). Moreover, it proves that the subsequent rules can be more stringent than the ones previously repealed.

The DOL is arguing that its new rule is “substantially different” from the repealed version because it expands testing to “a far larger group of unemployment compensation applicants than the previous rule permitted.” The Trump administration’s position rebuts the conventional wisdom that the CRA categorically stops agencies from reissuing public protections and has opened the door for agencies to bring back repealed protections in stronger form.

At a minimum, the DOL’s proposed rule shows that the CRA’s “substantially the same” provision is hardly the obstacle it is perceived to be among conservatives and regulatory critics.

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