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For more than a decade, it was common for elected officials on Capitol Hill to say, “the Congressional Review Act (CRA) has only ever been successful once.” However, under the Trump administration, the rarely used CRA has successfully overturned eight overreaching Obama-era regulations. Passed in 1996, the CRA allows new regulations to be overturned by Congress through a joint resolution of disapproval.

Under a CRA, Congress has 60 session days after a rule is submitted to review the regulation and introduce a resolution of disapproval. Any member of the U.S. House of Representatives or U.S. Senate can introduce a joint resolution. Also, unlike most legislation, the Senate only needs a simple majority to pass the resolution. Even if it passes Congress, the CRA is still subject to a presidential veto. Once a CRA is passed in Congress and signed by the president, it blocks the rule from taking effect and prevents a future administration from issuing a similar regulation. 

While a very useful tool, the CRA hasn’t been effective unless there is a party change from the outgoing administration and the new party takes full control of Congress and the White House. The first time the law was successful was under George W. Bush, who used a CRA on OSHA’s ergonomics standard in 2001, which was issued at the end of the Clinton administration.

Fast forward to March 27, when President Trump signed into law a resolution that effectively eliminated the Obama administration’s illegal “blacklisting” rule (formally known as the Fair Pay and Safe Workplaces final rule). The final rule had required federal contractors and subcontractors for the first time to disclose any “violations” of 14 federal labor laws occurring in the three years prior to any procurement for federal government contracts/subcontracts exceeding $500,000. The final rule threatened the due process rights of federal contractors and injected unwarranted subjectivity into the federal acquisition process.

At the time the CRA was introduced by U.S. Reps. Virginia Foxx (R-N.C.), Steve Cabot (R-Ohio) and Jason Chaffetz (R-Utah), Associated Builders and Contractors (ABC) was litigating the blacklisting final rule. On Oct. 24, 2016, a U.S. District Court judge ruled in favor of ABC’s lawsuit and granted a preliminary injunction blocking the rule from taking effect except for the paycheck transparency provisions. The CRA was then successful in wiping out the entirety of the rule, including the paycheck transparency provisions.  

Another successful CRA was used on OSHA’s “Volks” rule, also known as Clarification of an Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness final rule. The final rule extended the time period in which OSHA could cite an employer for recordkeeping violations from six months to up to five years. The rulemaking reversed the U.S. Court of Appeals for the District of Columbia Circuit’s decision in AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, which stated that OSHA must stick to a six-month statute of limitations when citing a company for failure to record an injury or illness and cannot treat such an event as a continuing violation throughout the five-year recordkeeping period. Rep. Bradley Byrne (R-Ala.) introduced the resolution and President Trump signed it April 3.

The CRA has become an effective way for the 115th Congress to roll back some of the Obama administration’s most egregious regulations. Most importantly, Congress is preventing another administration from creating rulemakings that are substantially similar. Employing the CRA is just the beginning of the Trump administration pushing back against regulatory overreach. 

Lauren Williams is manager of labor and employment policy for Associated Builders and Contractors. For more information, email lewilliams@abc.org

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