Repeal the Congressional Review Act

In this issue of NEW SOLUTIONS, Moskowitz et al. contextualize their discussion of state safe patient handling laws as follows:

In 2001, Congress overturned the ergonomics standard promulgated by the Occupational Safety and Health Administration (OSHA) in 2000. If it had been allowed to stand, the standard would have required the adoption of ergonomics programs in many industry sectors, including healthcare and social assistance. Subsequently, interest grew in Safe Patient Handling and Mobility (SPHM)-specific legislation to reduce MSDs among healthcare workers. ¹

The repeal of the ergonomics standard was possible only because of the Congressional Review Act (CRA), a result of the disastrous 1994 midterm elections that is still with us. During the 1994 campaign, the House Republicans issued a 10-section joint campaign platform. In doing so, they made the midterm election, which is often about local issues, into a national referendum on President Bill Clinton and on established government in general. This enabled them to take 11 governorships and control of both houses of Congress for the first time in 40 years. ² Although the platform's proponents called it the “Contract with America,” those who understood its implications for the values of the United States, called it more correctly the “Contact on America.” On 27 January 1996, at the beginning of the second year of the 104^th Congress, Clinton announced his capitulation to, or perhaps his alliance with House Speaker Newt Gingrich, drafter of the Contract on America, by declaring in his State of the Union Address “The era of big government is over.”

Shortly thereafter, on 29 March 1996, Bill Clinton affixed his signature to the Contract on America by signing the Contract with America Advancement Act, which included the Small Business Regulatory Enforcement Fairness Act (SBREFA), an Orwellian name if there ever was one. SBREFA allows businesses of all sizes and their trade associations to weaken proposed regulations from the Environmental Protection Agency (EPA), OSHA and other agencies before the public has the opportunity to see them. ³ A more accurate name for it would have been: “The big business unfair regulatory privilege act.”

One part of SBREFA is the CRA. CRA states that before a final rule can take effect, it must be submitted by the promulgating agency (e.g. EPA, OSHA) to both houses of Congress. Once a rule is submitted, Congress has 60 legislative days to decide whether to introduce a joint resolution of disapproval. ⁴ Because Congress takes a large number of recesses or “district work periods,” especially in election years, 60 legislative days may spread out over many more than 2 months. Since the CRA's passage, the “lookback period” available to a Congress convening in January to overturn regulations from the previous year has extended as far back as the previous May on five occasions, although most frequently it has been the previous July. ⁵ Only a simple majority in each house is needed for a resolution of disapproval to pass because the CRA states that such resolutions are not subject to filibuster. If both houses pass the resolution, it is sent to the President for signature or veto. If the President were to veto the resolution, Congress could override the veto by a two-thirds vote in each house. ⁴

The CRA states that a disapproved rule “shall not take effect (or continue).” It would be deemed not to have had any effect at any time, and even provisions that had become effective would be retroactively negated. In addition, agencies are prohibited from issuing rules in “substantially the same form” as a disapproved rule unless specifically authorized to do so by subsequent legislation. However, the CRA does not define what would constitute a rule that is “substantially the same” as a nullified rule. Additionally, the statute prohibits judicial review of any “determination, finding, action, or omission under” the CRA. ⁴

The CRA has been used to repeal 43 rules. Forty of these were rules promulgated under Democratic Presidents and repealed by Republican Congresses. ⁶ (Thank you, Bill Clinton). The first of these was the OSHA ergonomics standard, repealed by the 107^th Congress in 2001. ⁷ This is what made the state laws discussed by Moscowitz et al. necessary. For the next 16 years, that standard was the CRA's only victim. When Donald J. Trump and the 115^th Congress took office in 2017, the CRA was used to repeal another 16 rules, ⁶ including one that required bidders for federal contractors to disclose OSHA violations and one that restored the requirement that OSHA 300 logs be kept for 5 years. ⁸ These repeals have adversely affected worker safety and health protections. In less than 18 months since Trump and the 119^th Congress took office in 2025, more rules have been repealed using the CRA than in the statue's prior 28-year history. These have included three EPA rules related to California's pre-emption waiver for Motor Vehicle emissions standards, three EPA air pollution rules, and three Department of Energy rules on energy conservation. ⁶ The use of the CRA to repeal rules protective of environmental and occupational health has been detrimental to public health.

When the people of the United States finally condemn the Trump Crime Family and their co-conspirators join Viktor Orbán on the ash heap of history, the CRA should be repealed.