Well this is fun.
These days, when Congress is not immediately occupied with demolishing the Affordable Care Act, it’s been gleefully taking a sledge hammer to various regulations that were put out during the last six months of the Obama administration. In February, for example, Congress freed coal companies from the regulatory burden of having to find some place other than streams to dump their toxic mining waste. And as soon as the President signs legislation that was passed two days ago, shooting grizzly bears from airplanes will again be permissible.
The law that allows Congress to invalidate regulations is called the Congressional Review Act. It was passed 20 years ago (when Newt Gingrich roamed the Capitol – surprise!) and was used only one time before the current session of Congress. Only simple majority votes in the House and Senate and the signature of the president are needed to invalidate any regulation put into place after June 13, 2016. The law also provides that the executive branch agency that put the regulations forward in the first place may not impose “substantially similar regulations” without express Congressional approval.
Which brings us to another recent instance in which Congress voted to rescind an Obama policy, reported on first by Politico. This case involves a labor department regulation concerning the drug testing of people claiming unemployment insurance benefits.
Back in 2012, when the national unemployment rate was just beginning to recover from a recession-era high of 10.2 percent, Democrats and Republicans in Congress agreed on compromise legislation that extended unemployment insurance benefits but also allowed states to drug test claimants for UI who were applying for jobs in certain industries. (Because anybody who needed UI benefits at a time when job seekers vastly outnumbered job openings must of course be on drugs, and who even cares if drug testing in public benefits programs is a total waste of taxpayer money?) The legislation directed the Department of Labor to put out regulations to implement the drug testing provision. Last August, the Department issued final regulations that allowed drug testing of UI claimants for jobs in commercial trucking, air traffic control and other similar jobs involving public safety. The GOP, very disappointed that more jobs were not covered by the regulation, used the Congressional Review Act to pass legislation rescinding it. That bill is now headed to the president’s desk.
But here’s the rub: if the president signs the legislation, then the Trump administration’s Department of Labor cannot put out any new regulation that is “substantially similar” to the one that was rescinded. And any regulation governing drug testing of UI claimants would be “substantially similar” by definition.
What to do? If the president signs the legislation, the GOP can try to pass new legislation expressly permitting the Department of Labor to revisit the issue. However, the Senate vote to rescind the Obama-era regulation passed only narrowly (51-48), which likely means the GOP would need to deal with the threat of a filibuster. In the meantime, assuming the legislation becomes law, states with drug testing programs will be entirely without guidance about how to proceed without risking legal challenges. Governor Scott Walker, whose state has pioneered these drug testing programs, is probably not happy.
Wonder if Speaker Ryan know of the conundrum when he tweeted this?