{ "id": "IN10996", "type": "CRS Insight", "typeId": "INSIGHTS", "number": "IN10996", "active": true, "source": "EveryCRSReport.com", "versions": [ { "source": "EveryCRSReport.com", "id": 606493, "date": "2019-10-15", "retrieved": "2019-10-22T22:09:36.376199", "title": "Reissued Labor Department Rule Tests Congressional Review Act Ban on Promulgating \u201cSubstantially the Same\u201d Rules", "summary": "On October 4, 2019, the Department of Labor (DOL) published a final rule in the Federal Register on the states\u2019 ability to drug test certain unemployment compensation (UC) applicants. The UC drug testing rule is a reissued version of an Obama Administration rule that was disapproved in the 115th Congress under the Congressional Review Act (CRA; P.L. 115-17). DOL had previously published a proposed version of the rule on November 5, 2018. The rule is set to take effect on November 4, 2019.\nNotably, this is the first time an agency has reissued a rule after the original version was disapproved under the CRA. No Administration appears to have seriously considered reissuing the one rule that was disapproved prior to the 115th Congress, and none of the other 15 rules that were disapproved in the 115th Congress has been reissued thus far.\nWhen a rule is disapproved under the CRA, the rule may not take effect or continue in effect, and the agency may not issue \u201ca new rule that is substantially the same\u201d as the disapproved rule unless Congress provides subsequent statutory authorization. Since the UC drug testing rule was disapproved, Congress has not provided DOL with additional authority to regulate in this area. Thus, DOL reissued the rule under the same authority as the disapproved rule, Section 2105 of P.L. 112-96, the Middle Class Tax Relief and Job Creation Act of 2012. \nIn the preamble to the rule, the agency made clear that in its view, the reissued rule is sufficiently different from the disapproved rule so as not to violate the CRA. DOL stated that the rule\u2019s \u201csubstantially different scope and fundamentally different approach satisfies the requirements of the CRA, while still meeting the requirement of 42 U.S.C. 503(l)(1)(A)(ii) to issue regulations addressing what occupations regularly conduct drug testing.\u201d\nThe CRA does not define substantially the same. Whether a reissued rule is \u201csubstantially the same\u201d as the disapproved rule is likely to depend upon the specific circumstances surrounding the rule in question. During floor consideration of the disapproval measure for the UC drug testing rule, then-House Ways and Means Committee Chairman Kevin Brady, who was the sponsor of the joint resolution of disapproval, stated that the Obama Administration\u2019s UC drug testing rule had been inconsistent with congressional intent because the rule was written too narrowly, impairing the ability of states to implement their own requirements for drug testing. In the preamble to the newly reissued rule, DOL stated that the new rule had a \u201csubstantially different and more flexible approach to the statutory requirements than the rescinded final rule, enabling States to enact legislation to require drug testing for a larger group of UC applicants than the previous final rule permitted.\u201d \nDuring the comment period, a commenter raised the \u201csubstantially the same\u201d prohibition. DOL\u2019s response was that \u201cit is clear from a plain reading of [the CRA] that a reissued or new rule on the same subject is permitted provided that it is not substantially the same.\u201d DOL also pointed to the legislative history for the joint resolution of disapproval, asserting that Congress intended for the department to issue a new, broader rule. \nThe CRA does not specify who is to decide whether a reissued rule is \u201csubstantially the same.\u201d It is possible that Congress might be ultimately responsible for making that determination rather than a court: The CRA states that \u201cno determination, finding, action, or omission under this chapter shall be subject to judicial review.\u201d Courts have generally\u2014but not universally\u2014interpreted this provision to mean that they may not consider any claims alleging that an agency has failed to comply with the CRA. However, whether the \u201csubstantially the same\u201d prohibition itself could be subject to judicial review has not been tested in a court. If a court also believed that the CRA barred judicial review of whether a rule is \u201csubstantially the same,\u201d it would be unlikely to strike down the reissued UC drug testing rule on this basis. A number of commentators have argued, however, that the CRA\u2019s judicial review provision would not necessarily bar a court from reviewing whether a rule is \u201csubstantially the same\u201d as a disapproved rule. \nIf courts continue to bar all judicial challenges under the CRA, Congress would arguably be the sole arbiter of the \u201csubstantially the same\u201d standard. Now that the rule has been finalized, Congress will be able to use the CRA on the reissued version. If Congress does not disapprove the rule, and if the prevailing interpretation of the CRA\u2019s prohibition of judicial review holds, the rule will likely take effect\u2014arguably indicating Congress\u2019s implicit acceptance of the reissued rule.\nAs a practical matter, however, enactment of a resolution of disapproval requires passage by both chambers of Congress and the signature of the President or an override of the President\u2019s veto, which would require a two-thirds majority in both chambers. The President may be unwilling to sign a resolution of disapproval overturning a rule issued by his own Administration. Thus, Congress would likely need to override a presidential veto to disapprove the reissued rule, necessitating a supermajority vote in both houses.\nFor more information on the CRA, see CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked Questions. For a policy discussion of the UC drug testing rule, see CRS Report R45889, Unemployment Compensation (UC): Issues Related to Drug Testing.\nA previous version of this CRS Insight was published on November 19, 2018, after DOL published the proposed rule.", "type": "CRS Insight", "typeId": "INSIGHTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "https://www.crs.gov/Reports/IN10996", "sha1": "f0af86df7766961dd4bde64e78ee60b3704615c3", "filename": "files/20191015_IN10996_f0af86df7766961dd4bde64e78ee60b3704615c3.html", "images": {} }, { "format": "PDF", "encoding": null, "url": "https://www.crs.gov/Reports/pdf/IN10996", "sha1": "7aba9c9cf8f8d4f41352e4ff5407590cabcfb1db", "filename": "files/20191015_IN10996_7aba9c9cf8f8d4f41352e4ff5407590cabcfb1db.pdf", "images": {} } ], "topics": [] }, { "source": "EveryCRSReport.com", "id": 587781, "date": "2018-11-19", "retrieved": "2018-11-26T13:58:19.190722", "title": "Reissued Labor Department Rule Tests Congressional Review Act Ban on Promulgating \u201cSubstantially the Same\u201d Rules", "summary": "On November 5, 2018, the Department of Labor published a proposed rule in the Federal Register on the states\u2019 ability to drug test certain unemployment compensation (UC) applicants. The proposed UC drug testing rule is a reissued version of a rule that the 115th Congress disapproved in 2017 under the Congressional Review Act (CRA). That rule had been issued by the Obama Administration on August 1, 2016, but was disapproved by P.L. 115-17, which President Donald Trump signed into law on March 31, 2017. \nNotably, this is the first time an agency reissued a rule after the original version was disapproved under the CRA. No Administration appears to have seriously considered reissuing the one rule that was disapproved prior to the 115th Congress, and none of the other 15 rules that have been disapproved in the 115th Congress have been reissued thus far.\nWhen a rule is disapproved under the CRA, the rule may not take effect or continue in effect, and, furthermore, the agency may not reissue the rule in \u201csubstantially the same form\u201d or issue a \u201cnew rule that is substantially the same\u201d as the disapproved rule unless Congress provides subsequent statutory authorization. Congress has not provided additional authorization since the UC drug testing rule was disapproved. Thus, DOL reissued the rule under the same authority as the disapproved rule, Section 2105 of P.L. 112-96, the Middle Class Tax Relief and Job Creation Act of 2012. In so doing, the agency made clear that it was attempting to reissue the rule in a form that was sufficiently different from the disapproved rule so as not to violate this provision of the CRA. In the preamble to the reissued rule, DOL stated the following: \u201cTo comply with both the mandate to issue regulations [under the Middle Class Tax Relief and Job Creation Act], and the CRA prohibition on reissuing the rule in substantially the same form,\u2019 the Department has carefully considered the Act, the 2016 Rule, and the congressional notice of disapproval.\u201d \nThe CRA does not define \u201csubstantially the same.\u201d Whether a reissued rule is \u201csubstantially the same\u201d as the disapproved rule is likely to depend upon the specific circumstances surrounding the rule, such as whether the rule was required by statute (as was the case with the UC drug testing rule) and how much discretion the agency has. During floor consideration of the disapproval measure for the UC drug testing rule, House Ways and Means Committee Chairman Kevin Brady, who was also the sponsor of the joint resolution of disapproval, stated that the UC drug testing rule issued by the Obama Administration had been inconsistent with congressional intent because the rule was written too narrowly, impairing the ability of states to implement their own requirements for drug testing. In the preamble to the newly reissued rule, DOL acknowledged this concern: \u201cIn this NPRM, the Department now proposes a substantially different and more flexible approach to the statutory requirements than the [disapproved] 2016 Rule, enabling States to enact legislation to require drug testing for a far larger group of UC applicants than the previous Rule permitted.\u201d \nThe CRA does not specify who is to decide whether a reissued rule is \u201csubstantially the same.\u201d It is possible that Congress might be ultimately responsible for making that determination, rather than a court: the CRA contains a prohibition on judicial review, stating that \u201cno determination, finding, action, or omission under this chapter shall be subject to judicial review.\u201d This provision has generally been interpreted by courts to mean that they may not consider any claims under the CRA, although the \u201csubstantially the same\u201d prohibition has not been tested in a court. Should the prevailing judicial interpretation of the CRA\u2019s judicial review provision hold, a court would be unlikely to strike down the reissued UC drug testing rule on the basis that it violates the \u201csubstantially the same\u201d prohibition in the CRA. A number of commentators have argued, however, that the CRA\u2019s judicial review provision would not necessarily bar a court from reviewing whether a rule is \u201csubstantially the same\u201d as a disapproved rule. \nIf courts continue to bar all judicial challenges under the CRA, Congress would arguably be the sole arbiter of whether the reissued rule clears the \u201csubstantially the same\u201d standard. Upon finalizing the new version of the rule, DOL would be required to submit it to Congress under the CRA, and Members would have the opportunity once again to introduce and act on resolutions of disapproval under the CRA. If Congress does not disapprove the rule, and if the prevailing interpretation of the CRA\u2019s prohibition of judicial review holds, the rule would likely take effect\u2014arguably giving Congress\u2019s implicit acceptance of the reissued rule. Thus, the possibility of future action in Congress, in a sense, could be considered an enforcement mechanism for the \u201csubstantially the same\u201d prohibition.\nOnce the newly reissued UC drug testing rule is finalized, however, enactment of a CRA resolution of disapproval overturning it may be difficult. Enactment of a CRA resolution of disapproval requires either passage by both chambers of Congress and the signature of the President or an override of the President\u2019s veto, which would require a two-thirds majority in both chambers. The President may be unwilling to sign a resolution of disapproval overturning a rule issued by his own Administration. Thus, one might expect that Congress would need to override the President\u2019s veto if it wanted to disapprove the reissued rule, necessitating a supermajority in both houses.\nFor more information on the CRA, see CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked Questions. For a discussion of policy developments related to the UC drug testing rule, see CRS Insight IN10909, Recent Legislative and Regulatory Developments in States\u2019 Ability to Drug Test Unemployment Compensation Applicants and Beneficiaries, by Julie M. Whittaker and Katelin P. Isaacs.", "type": "CRS Insight", "typeId": "INSIGHTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/IN10996", "sha1": "cc611818c68cabced2626c720b8ade755f96ea08", "filename": "files/20181119_IN10996_cc611818c68cabced2626c720b8ade755f96ea08.html", "images": {} } ], "topics": [] } ], "topics": [ "CRS Insights" ] }