The Senate passed Wednesday, 52–48, a measure nullifying the Biden administration’s mandate requiring workers at companies that employ more than 100 people either to get vaccinated against Covid-19 or submit to weekly Covid testing at their own expense. The measure is unlikely to pass the House, where Democrats have a bigger majority, so it won’t become law. And even if it did, President Joe Biden would veto it.
But perhaps you’re wondering how this crackpot legislation, which passed with support from the entire Republican caucus plus two Democrats (Joe Manchin of West Virginia and Jon Tester of Montana), got to the Senate floor in the first place. Why wasn’t this bill bottled up in committee, or set aside by Senate Majority Leader Chuck Schumer, or filibustered by Democrats?
Because the measure wasn’t a bill at all. It was a joint resolution of disapproval passed under something called the Congressional Review Act, or CRA, which permits Congress to veto executive branch regulations within 60 legislative days after their implementation under an accelerated procedure that ties the hands of congressional leaders and disallows filibusters. Given the shortness of the legislative calendar, 60 legislative days can easily translate to nine or 10 months.
The CRA is a bad law that congressional Republicans pushed through in the 1990s after they gained control of both House and Senate for the first time in four decades. Regulatory relief was a high priority for what became known as the “Republican Revolution” or the “Gingrich Revolution” (after Newt Gingrich, who got himself elected House speaker on the strength of writing a bomb-throwing campaign document called the Contract for America).
The CRA passed after Senate Democrats filibustered a more sweeping anti-regulatory measure sponsored by Senate Majority Leader Bob Dole, who was trying to shore up his conservative bona fides in advance of his 1996 presidential bid. Unlike Dole’s bill, the CRA enjoyed support from liberal Democrats like Senators Carl Levin of Michigan and Harry Reid of Nevada. “If a rule goes too far afield from the intent of Congress,” Levin said, “we can stop it. That’s a new day, and one a long time in coming.” President Bill Clinton signed the CRA into law in March 1996.
No one gave the CRA much thought before Donald Trump became president. Until 2017, the first and only time it was used to block a rule was at the start of President George W. Bush’s term, to block a Clinton administration Occupational Safety and Healthy Administration rule on ergonomics to which nobody paid much mind. Six Senate Democrats and 16 House Democrats voted with the Republicans to kill the rule.
The CRA didn’t come up much because a president is virtually guaranteed to veto any joint resolution nullifying a regulation issued by one of his own agencies. A president is also very likely to veto any such resolution if the regulation was issued under an immediate predecessor of the same party. The CRA acquires force only when the White House passes from one party to another and that same party controls Congress. That’s why the Senate Republicans’ effort to nullify Biden’s vaccine mandate is just for show: Republicans control neither Congress nor the White House.
The stars were aligned to use the CRA during the first four months of Trump’s presidency, and Trump took maximum advantage of it. The period from January through May 2017 was a sort of St. Valentine’s Day Massacre for regulations issued under President Barack Obama. Only maybe that isn’t the right metaphor because, on that fateful day in 1929, Al Capone’s South Side Gang mowed down only seven members of the rival North Side Gang. Trump mowed down 16 regulations: four environmental rules; five labor rules; two education rules; two consumer protection rules related to financial chicanery (one of these was technically a “guidance” rather than a regulation); and rules to improve data on gun sales, to protect women’s access to family planning resources, and to protect internet privacy. Rat-a-tat-tat.
The stars aligned again during the first months of Biden’s presidency, giving Biden and Congress the opportunity to mow down no fewer than 1,492 regulations pushed out the door during the final months of Trump’s presidency. But in the end, Biden and Congress used the CRA to repeal only three: an Equal Employment Opportunity Commission rule increasing the information the EEOC shared with companies about accusations of discrimination, an Environmental Protection Agency rule loosening emissions standards for methane, and a rule from the comptroller of the currency that allowed banks to assist predatory lenders.
Why didn’t Biden use CRA to kill more Trump regulations? And why didn’t President Barack Obama, who came into office under CRA-friendly circumstances, use the statute to kill any regulations issued by President George W. Bush? Partly because Democrats and Republicans want different things.
A Democratic president comes into office wanting to pass ambitious legislation. A Republican president comes into office wanting only to cut taxes, slash regulations, and maybe, if they’re feeling frisky, start a war. (It’s a blessing that Trump wanted only to do the first two.) CRA fights can take time and attention away from things like the Affordable Care Act and the Build Back Better bill. If you’re a Republican, there’s no Affordable Care Act or Built Back Better bill to worry about.
The main obstacle, though, is that the CRA bars future administrations from enacting a regulation that’s “substantially” the same as the one being nullified. That risks court challenges to a substitute regulation that addresses the same environmental, workplace, or other abuse more aggressively or effectively. In the words of David Michaels, who ran OSHA under President Barack Obama, this provision “handcuffs agencies, blocking them from addressing the needs of the public.” Republicans have an easier time shrugging off that limitation because they don’t especially want to replace one regulation with another; they just want to get rid of every regulation they can lay their hands on.
The House Judiciary Committee held a hearing last week in which Representative Pramila Jayapal discussed her Stop Corporate Capture Act (text; summary), which would require greater conflict-of-interest disclosures for industry-funded studies used in rulemakings; require more transparency about rule changes requested by the White House, Congress, or other federal agencies; require agencies to take more into account intangible benefits to society when considering a rule; and allow fast-track reinstatement of rules nullified through the Congressional Review Act. These are all excellent reforms. But I think Jayapal’s missing an excellent opportunity to repeal CRA in its entirety. We should try to get that done before another Republican president—possibly Trump himself—stages a second St. Valentine’s Day massacre.