Senate Republicans voted Tuesday night to kill an obscure Obama-era regulation because they wanted to make it easier for states to drug-test applicants for unemployment benefits. Theres just one problem: They may have just made it harder.
Last August, the Labor Department finalized a rule that let states drug-test people claiming unemployment benefits in aviation, trucking, law enforcement and other lines of work that already had routine on-the-job testing. Republicans complained that the rule was far too limited in who could be tested, and the House passed a repeal bill last month. Tuesday night, the Senate sent the bill to President Donald Trumps desk on a party-line vote of 51-48, and Trump is expected to sign it.
The bills sponsors, Rep. Kevin Brady and Sen. Ted Cruz, both Republicans from Texas, promptly claimed a victory in the fight to rein in federal overreach and empower states. The American people are sick and tired of Washington bureaucrats abusing their authority, Brady said in a statement. Cruz hailed his colleagues in Congress for returning discretion to the governments that are closest to the people.
For now, though, it looks as if repealing the rule might actually have the opposite effect. Under the 2012 law that directed the Labor Department to create the rule, its not clear that states will have the authority to drug-test workers (except those who lost jobs for drug-related reasons) from any industries until theres a new rule or a new law in place.
That could create a real quandary for GOP lawmakers, because theyre killing the drug-testing rule under the Congressional Review Act, a law that was used only once before 2017 but has now been used to strike down eight late-term Obama regulations. The CRA gives Congress the power to wipe out recently finalized rules with simple majorities in the House and Senate, but with a catch: It forbids the executive branch from developing similar rules to replace them. This could prevent Trumps Labor Department from creating a more expansive drug-testing rule. And while Brady is preparing new legislation that could supersede the 2012 law and give states much more flexibility to drug test, that legislation would presumably require 60 votes in the Senate to overcome a filibusterand Republicans got only 51 Tuesday night.
