Repealed already repealed...

Trump’s strange plan to issue a rule that he already repealed

A new drug-testing regulation could stretch the limits of his rollback of Obama’s legacy.

By DANNY VINIK

As the GOP Congress scrambled last year to roll back as many Obama-era regulations as possible, one target was a Department of Labor rule on worker drug testing. The rule they rolled back wasn’t exactly a liberal employee protection: In fact it gave states permission to drug test certain workers receiving unemployment insurance, though it set limits around which workers.

On March 31, President Donald Trump signed the bill that officially eliminated the rule.

Now, less than a year later, Trump's Department of Labor is planning to reissue a similar regulation—once again allowing states to drug test certain workers, only broadening it so that it applies to an even larger population.

The planned rulemaking, which the DOL expects to begin later this year, has raised fears among the left that the department will enable states to drug test many more workers. But it also may set up a deeper conflict within the government—one that has the Trump administration testing the limits of just how much it can rewrite the Obama legacy.

The GOP rolled the rule back using an obscure 1996 law called the Congressional Review Act, which allows Congress to repeal recently issued regulations with a simple majority vote. Previously used only once, back in 2001, it became a favorite tool of the Trump GOP, which used it early last year to kill no fewer than 14 late-term Obama rules without a single Democratic vote.

But there’s a catch, and Trump’s proposed new drug-testing policy may trigger it.

Under the Congressional Review Act, agencies actually can't just re-issue new rules to replace the repealed ones. The law prohibits them from reissuing a rule that is “substantially the same” as the one that Congress repealed. Republicans have generally celebrated this feature of the law, saying they were permanently wiping away regulations that could never be reinstated. (In fact, according to a recent Axios report, 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.)

But in the case of the drug-testing rule, Republicans actually do like the idea of drug-testing people who get unemployment checks. In fact, their main complaint with the Obama rule was that they found it too narrow. After Trump signed the repeal into law last March, Acting Secretary of Labor Ed Hugler said in a statement that the agency “looks forward to examining additional flexibilities for states” to drug test unemployment insurance applicants. In other words, they planned all along to expand drug testing.

But can they? That's less clear. In replacing a rule repealed under the Congressional Review Act, the administration appears to be steering into a messy—perhaps unprecedented—legal question.

The question mark over the whole idea underscores just how novel 2017 was when it came to repealing regulations. The first months of the Trump administration were the first sustained experiment in using the Congressional Review Act to overturn multiple regulations. Its only previous successful use, ever, was to repeal a single ergonomics rule issued at the end of the Clinton administration. In the first four months of Trump's presidency, by contrast, an enthusiastic Congress used it to roll back rules on everything from workplace safety to individual retirement accounts.

When the law was written, it contained a provision to ensure that if Congress objected to a certain rule and used the CRA to repeal it, the executive branch couldn’t just reissue it. Under the law, an agency cannot issue a rule “substantially the same” as one eliminated under the CRA, unless Congress grants the agency express authority to reissue it.

But the Trump administration, in its semi-annual regulatory agenda, released in December, now appears ready to test that: It plans to write a new and more permissive version of the drug-testing rule.

“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.

The fight over the drug testing rule itself dates back to 2012, when Democrats struck a deal with Republicans to extend an emergency unemployment program in return for allowing states to drug test unemployment applicants, which was previously prohibited under federal law. Under that deal, states could only drug test workers in two specific scenarios: those who were fired from their last job because of drug use, which generally makes them ineligible to collect jobless benefits anyway, and workers looking for a job in an industry that regularly drug tests its workers, a category determined by the Department of Labor. The resulting regulation, issued in August 2016, interpreted the latter category to include industries where drug testing is required, such as aviation, trucking and law enforcement. As of September 2016, when the regulation took effect, states could—for the first time—drug test certain people seeking unemployment benefits.

Republicans strongly objected to the interpretation by Obama’s Department of Labor, arguing that it should include industries where drug testing is merely permitted, a much broader standard that would sweep many more workers into state drug testing programs. Last year, using the CRA, they repealed the Obama-era rule, rescinding—at least temporarily—states’ authority to drug test unemployment applicants. (While three states had created drug testing programs between 2012 and 2016 in anticipation of the DOL rule, no state actually set up a program after the rule was finalized.)

The big question: Could the Department of Labor actually issue this new rule under the CRA? Or had Republicans just permanently repealed states’ authority to drug test unemployed workers?

Regulatory experts aren’t exactly sure about the answer, since no agency has ever tried to issue a rule that was previously repealed under the CRA, and therefore no court has issued an opinion. Neither the DOL or the White House budget office responded to a request for comment.

Some regulatory experts think the judiciary may be powerless over such a case because a separate provision in the CRA expressly exempts the law from judicial review. In other words, if a person or organization attempted to challenge a reissued rule, arguing that it violates the “substantially the same” clause, a court might just throw the case out. “It’s basically a requirement that has no enforcement mechanism,” said Curtis Copeland, a regulatory expert who previously worked for the Congressional Research Service.

Todd Gaziano, a senior fellow at the Pacific Legal Foundation who helped craft the Congressional Review Act as a congressional staffer, disagreed. He argued that outside parties would be challenging the new rule, not the CRA itself, which would permit judicial review of agency actions. “They are not looking behind the law into the CRA procedures,” he said. “They are only applying the law.”

It’s unclear whether liberal groups will force the issue by challenging the Trump drug-testing rule as “substantially the same” as the Obama-era rule. For one thing, the rule hasn’t been issued and it’s not clear when that will happen. For another, many of those groups believe that the courts should interpret “substantially the same” narrowly, so that agencies would have significant flexibility to reissue rules repealed under the CRA. They may instead challenge it on other legal grounds, potentially arguing that it violates the 2012 unemployment insurance law or violates the Fourth Amendment rights of workers, which protects against unlawful searches.

Gaziano, for his part, said that Trump’s Department of Labor is likely to be on sound legal footing if it issues a new, broader rule on drug testing unemployment applicants, because the agency is adhering to congressional intent in repealing the Obama-era rule. The CRA, he said, was written to give Congress greater influence over the regulatory process, forcing regulators to issue rules that more closely track Congress’s expectations under the original legislation. The only situation where an agency couldn’t reissue a rule, he argued, would be when Congress has given the agency such limited flexibility in statute that it is unable to write a “substantially” different rule.

If that’s the case, then—ironically—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.