In Trump’s zeal to roll back Obama-era regulations, he and Congressional Republicans chose something like the “nuclear option,” a last-resort way to eliminate Obama’s recently issued provision by way of using an obscure 1996 law called the Congressional Review Act. That way, Democrats would have no option to vote on the matter –perfect! Who cares about working with the Dems, right? Well, in his haste to remove Obama’s regulations, Trump appears to have removed one rule the Republicans actually want, which is to allow states to drug test workers who receive unemployment insurance. Now almost a year later, Trump is trying to bring back the regulation he killed, making it easier for employers to do drug testing.
The only problem: The Congressional Review Act was written so that regulations that are “substantially the same” can’t be re-imposed once they are removed. In effect, Trump might have permanently repealed states’ authority to drug test unemployed workers.
Recall that in Apri 2017, Republicans in the Senate used the “nuclear option” to change the rules, allowing a simple majority of 51 votes to place their conservative Justice Neil Gorsuch on the Supreme Court, although Senator Mitch McConnell gleefully blocked Obama’s pick for months. They wanted no input from Democrats, many of whom strongly objected to Gorsuch.
Shortly before that in March, they exploited the Congressional Review Act, which was only ever used one time before in 2002. While they changed rules to suit their goal of appointing a conservative to the SCOTUS, in the case of the Congressional Review Act, they may not be able to re-write the rules, and it could backfire on them this time.
Keep in mind; Trump officials are well-aware of the fact that the Congressional Review Act could be used to remove regulations they don’t want permanently. An Axios report proves that:
“Trump officials considered a bizarre plan to issue a batch of ultra-liberal regulations just so the GOP Congress would immediately repeal them, blocking a future Democratic administration from issuing real ones.”
So now what will he and Congressional Republicans do since their obsession with destroying all things associated with Obama may have backed them into a corner? Odds are, they will find a way to re-interpret the Congressional Review Act so that they can bring back drug-testing for unemployment benefits.
Regulatory experts aren’t sure if they can since no one has attempted to re-issue a rule they just repealed but that doesn’t mean that Trump won’t try.
According to Politico:
“The Trump administration appears to be [trying to] prove that not only can agencies issue new rules when past rules have been overturned by the CRA, but that those rules can be even stronger,” said Amit Narang, a regulatory expert at Public Citizen.
If Trump can re-issue a regulation he impetuously or perhaps naively removed, Congressional Republicans will have to grant the Department of Labor the express authority to do so. A December regulatory agenda shows that there are plans to try that out, re-introducing a more permissive drug-testing rule.
If Republicans in Congress allow Trump to re-introduce new regulations, very similar to those removed, then it sets a precedent for the future which could favor Democrats and bring back Obama’s legacy.
“[…] the Trump administration may have provided a roadmap for a future Democratic president to emulate Trump’s example and re-issue all those Obama-era rules—as long as they make sure they are “substantially” different from the originals.”
Way to go, Trump and the GOP Congress! Your willingness to do just about anything to destroy Obama’s legacy could mean it’s coming back in the not-so-distant future.
See more in this video about the Congressional Review Act below:
Featured image: Trump bill signing via Wikimedia Commons