As the oldest child of two blue-collar immigrants, I saw my parents struggle with chronic back, shoulder, and wrist pain caused by their jobs. My mother and father both worked long hours in physically demanding jobs as a cleaner and technician at a factory respectively. This wasn’t unique to my parents. It’s the reality for many working-class Americans who oftentimes push their bodies to the brink in their careers. Nurses, construction workers, cleaners, and other labor-intensive blue-collar workers oftentimes deal with high amounts of chronic pain stemming from their daily exposure to ergonomic hazards. It makes sense that the Occupational Health and Safety Administration (OSHA), the body tasked with ensuring workers’ safety, should step in and regulate these hazards. So why don’t we have an OSHA standard on the books for ergonomic stress? The answer? The Congressional Review Act.

Over 20 years ago, OSHA did create regulations addressing ergonomic hazards. After Congress finalized the regulation during the Clinton administration’s lame-duck period, President George W. Bush and the 107th Congress repealed it through the Congressional Review Act. This act not only prevented OSHA from enforcing the regulation, but also prohibited the agency from issuing regulations that are “substantially the same” indefinitely. Thanks to the Congressional Review Act, workers like my parents not only lost the immediate benefit of a strong ergonomic hazard rule, but would never see one proposed or implemented ever again. Their health, and those of millions of other workers, was sacrificed for the benefit of big business and politics. It begs the question; how effective can a government be in protecting its people if those efforts can be overturned by a disgruntled Congress and future administration?

What is the Congressional Review Act?

The Congressional Review Act (CRA) was established in the America Advancement Act of 1996 and signed into law by President Bill Clinton. Newly minted House Speaker Newt Gingrich crafted the law for purely partisan purposes following a Republican sweep in the 1994 election that gave Republicans control of the House of Representatives for the first time since 1955. He envisioned it as a tool the new Republican majority could utilize to kill or block regulations and downsize the role of the federal government.

The bill gives Congress 60 legislative days to essentially veto any single regulation issued by the executive branch and requires a joint resolution of disapproval to pass both houses of Congress by a simple majority vote. The president can ultimately veto the resolution or sign it into law, overturning the federal agency’s rule. Under the CRA, Congress has successfully overturned 20 proposed regulations, most extensively during the first years of the Trump administration when Republicans controlled both chambers of Congress. During this time, Congress overturned 16 rules developed during the Obama administration, including one that would have set limits on coal companies dumping waste into streams. The Biden administration and the Democratic-controlled Congress in turn overturned 3 Rules that originated during the Trump administration.

How did this happen? The CRA allows for a ‘lookback’ period for rules issued during the 60-legislative day period before a congressional session ends. This is particularly important in the instance of a political change at the White House, opening up the possibility that rules issued towards the end of previous administration could be overturned by its successor.

Over the past couple of months, the Biden administration has issued several new regulations to protect public health and the environment. This recent flurry of regulations is no mistake as agencies are rushing to get them out the door to avoid a successful CRA attempt if there is a change in presidential administration. Years of intense scientific debate, public participation, and countless hours of work by federal employees could be voided with a rushed simple majority vote of Congress.

Prior to the Trump administration, Congress successfully used the CRA only once before, to overturn that OSHA rule in 2001. It’s apparent that the use of the CRA has gained significant traction over the last two administrations and that Republicans are significantly more aggressive in utilizing the law. As Republicans embrace an even more extreme deregulatory agenda that jeopardizes the ability of the government to protect workers, health, and the environment, it’s critical that we acknowledge the reality of the CRA as a partisan tool that is dangerous to communities and workplaces. With the most recent wins and future wins for the environment, public health, and labor on the line, the Congressional Review Act must be repealed.

The Congressional Review Act’s Problems

1. The CRA is a scorched-earth tactic that makes our communities and workplaces less safe. When a regulation is overturned by the CRA, the same regulation can never be renewed and the ability of a federal agency to replace the rule is limited and substantially unclear due to the vague wording of the law. The CRA also harms the ability to establish strong, efficient, and effective regulations. “Fixing” a regulation by using the CRA is akin to using a sledgehammer to straighten up a bent nail. It’s overkill and provides a chilling effect on federal agency action. In the aftermath of the CRA vote to overturn its ergonomic stress rule over 20 years ago, OSHA has only offered piecemeal voluntary solutions for ergonomic stress for fear of another CRA reprisal. More often than not, when a CRA is successful, workers and vulnerable communities are the ones that suffer.
2. The CRA encourages polarization. It incentivizes a tit-for-tat dynamic where a new Congress can immediately attempt to erase the accomplishments of the previous administration, without any regard to how those regulations will improve lives. With only 60 days to understand extremely technical rules, Members of Congress often resort to party-line votes that only exacerbate existing polarization.
3. The CRA is undemocratic. Proponents have argued that the CRA is a ‘check’ on the administrative state, but conveniently ignore that presidential administrations are already elected through a democratic process. The development of a rule is oftentimes a very democratic process with agencies developing regulations after extensive interactions with experts, representatives, and the public. The CRA allows bad faith actors with political agendas to decimate even popular protections oftentimes at the behest of big business. While agencies are far from perfect, the current regulatory structure has helped democratize the process and provided more opportunities to include the voices of impacted communities. The CRA silences and discounts their input.

Regulations aren’t glamourous and often get a bad reputation, but the reality is that effective regulations protect us and help level the playing field against powerful industries, businesses, and even the government itself. Deregulation only serves the interests of the rich and powerful by opening holes in our regulations that can be exploited at the expense of workers and vulnerable communities. Repealing the CRA would remove one of the most potent tools these actors have in our lawmaking system and give back power to the workers, advocates, and everyday people who seek fairness, equity, and justice.