In an important, but almost un-noticed opinion last month, the federal Court of Appeals for the Sixth Circuit (covering Michigan, Ohio, Kentucky, and Tennessee) issued the first judicial opinion cutting back on the deregulatory impacts of the 1996 Gingrich-era Congressional Review Act (CRA) which allowed Congress to easily repeal recently issued regulations — and threatened to stop agencies from ever addressing the issues again.
The case involved a consumer privacy rule issued by the Federal Communications Commission (FCC) to replace an earlier version vetoed by Congress. The opinion is a landmark not just for the FCC.
In 2001, the first congressional veto of a rule under the CRA killed OSHA’s first and only rule dealing with ergonomic injuries on the job musculoskeletal injuries caused by ergonomic problems are so widespread and serious that they remain the biggest problem OSHA has been unable to address. Because of this court decision, after Trump leaves office and a more moderate president is elected, workers severely injured in meatpacking, construction, healthcare, public and private package delivery services, and office work may again seek some relief.
Here’s what happened.
Beware “Good Government” Laws
In 1996, Republicans under then-Speaker of the House Newt Gingrich passed the Congressional Review Act in an effort to gain more congressional control over “burdensome” regulations.
The Congressional Review Act was enacted as part of the Small Business Regulatory Enforcement Fairness Act, another 1996 law that has gummed up OSHA rulemaking. The Congressional Review Act streamlines the procedures that usually apply in the House and Senate making it far easier to veto a rule. For example, the Act:
- Requires agencies to send covered rules to Congress for consideration before the rule goes into effect. Congress must act to disapprove within 60 days;
- Waives the filibuster rule in the Senate, substituting a majority vote for the sixty-vote cloture rule that applies to passage of most legislation;
- Limits floor debate on a disapproval resolution to twenty hours divided equally between supporters and opponents (Republican supporters of a veto often give up their time to speed the process along);
- Bars judicial review of the process used to repeal regulations; and
- And most damaging, the CRA “salts the earth,” forbidding an agency from writing a new rule that is “substantially the same” as the revoked rule.
In 2001, American workers learned how the CRA could be turned into a deadly weapon. Soon after George W. Bush became President in 2001, the new Republican-controlled Congress invoked the law for the first time to kill OSHA’s effort to regulate widespread ergonomic injury in many workplaces, “one of the greatest crimes in American labor history” as Confined Space publisher Jordan Barab has labeled it. Because CRA actions must be approved by both houses of Congress and signed by the President, action under the CRA is generally only possible when a party controls the Presidency and both houses of Congress.
Most damaging, the CRA “salts the earth,” forbidding an agency from writing a new rule that is “substantially the same” as the revoked rule.
New York Times labor reporter Steven Greenhouse described the scene the day in 2001 when Congress killed the Clinton ergonomics rule:
Moving with unusual speed, the House voted narrowly tonight to repeal new workplace safety regulations, just a day after the Senate voted to rescind the same rules. … The Capitol was swarming today with opponents and advocates of the regulations. Business lobbyists and corporate executives crowded into Republicans’ news briefings while Democratic lawmakers showcased workers whose wrists, elbows and necks had been hurt.
OSHA had spent a decade writing the rule, but Congress killed it after just a few hours of debate in each House. OSHA estimated that the rule would have saved $9 billion by reducing injuries and sick days and increasing productivity while costing affected industries $4.5 billion. These estimates rely on a lot of complicated assumptions that are sometimes more artful than scientific. But in the 24 years since the veto, ergonomic injuries in the workplace have grown steadily worse, especially in industries like meatpacking, construction, and healthcare.
Since that time, OSHA – even under Democratic administrations – has never issued a regulation addressing the safety hazard plaguing workers in any industry that requires repetitive motion, lifting of heavy objects or people, and sitting, standing, or crouching in positions that strain the body, despite OSHA’s characterization of work-related musculoskeletal injuries as “among the most frequently reported causes of lost or restricted work time.”
Trump Wields the CRA
The Trump administration has used the CRA much more actively to repeal rules from the previous administrations. Among other repealed regulations, the first Trump administration used the CRA to repeal the “Volks Rule,” thereby sharply narrowing OSHA’s ability to enforce its recordkeeping rules. To learn more about the law and its impact in the two Trump administrations when dozens of rules were vetoed, see an excellent summary prepared by the Congressional Research Service and an equally good tracking program sponsored by the Center for Progressive Reform.
Most agencies, including OSHA, even under Democratic administrations, have been concerned that the “salting the earth” provision could be a major obstacle to any further action on regulations repealed under the CRA that are in any way similar to the repealed regulations.
Some administrative law experts, including me, think they are gravely mistaken, while others argue agencies are dead in the water if they try again.
For example, during the Obama administration, OSHA considered working on an ergonomics rule that would have covered only a single sector, hoping that the courts would consider a narrower rule as not being “substantially the same” as the original ergonomics standard that covered all sectors. But no action was taken and up until recently, no court had the opportunity to consider exactly what Congress intended by the words “substantially the same.”
Un-salting the Earth
But last month, the Sixth Circuit found against the business associations – issuing an opinion favorable to agencies that seek to take a more flexible view of what “substantially the same” means.
The case was brought by Latham & Watkins, a prominent pro-industry firm headquartered in Washington, D.C., on behalf of the Ohio Telecom Association, the Texas Association of Business, CTIA-The Wireless Association, NCTA-The Internet & Television Association, and USTelecom-The Broadband Association.
The industry associations argued that because Congress had used the CRA to veto a 2016 (Obama Administration) FCC rule protecting their customers from deliberate or inadvertent disclosure of consumers’ private information, the agency’s 2024 “re-do” under the Biden administration was not permissible because it contained provisions similar to the vetoed rule.
Here’s what the actual language of the CRA says about vetoed rules: “[Such rules] may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.” (emphasis added) 5 U.S.C. §801(b)(1)(2).
But the meaning of the crucial words “substantially the same” was never defined until the Sixth Circuit took on the task.
The opinion in the Sixth Circuit case was written by Jane B. Stranch, a senior judge who was appointed by Barack Obama. She was joined on the opinion by Judge Andre Mathis, a Joe Biden appointee. Judge Richard Allen Griffin, a George W. Bush appointee, dissented.
Judge Stranch’s opinion begins by analyzing the statute that the FCC relied upon for authority to issue both rules. Having concluded that that law provides adequate authority, she turns to the key issues of (1) whether the Congressional Review Act bans judicial review of an agency re-do and (2) whether the law’s provision allowing agencies to write a second rule that is not “substantially the same” as the rule Congress vetoed applies to the FCC case.
She concludes that because the court was considering the FCC rule itself, and not the CRA vote on the old rule, the court has jurisdiction.
Regarding the phrase “substantially the same,” she found that provisions in the new rule did not meet the dictionary definition of “substantially” when compared with provisions in the old rule, and the provisions of the new rule were different than the old rule, and therefore not “substantially the same.”
Finally, had Congress really intended to prevent agencies from issuing rules that addressed “any part of the prior rule,” Congress could have said that in the legislation. But they did not.
Had the business associations won, the decision would have been read to bar agencies from ever returning to a problem addressed by a rule vetoed under the CRA.
Supreme Court to Business’s Rescue?
But the partisan line-up of the Circuit Court judges – two Democratic appointees vs one Republican appointee — will undoubtedly catch the Supreme Court’s attention if and when plaintiffs appeal the case to the Supreme Court.
It’s worth reminding readers at this point that the Supreme Court is the only federal court that chooses the cases it will consider, as opposed to hearing any case the losing party has the resources to appeal. The Court takes somewhere between 60 and 80 cases in a term out of thousands asking it for review.
The losing industry parties in this case may appeal because one goal in the case is to ensure that agencies remain intimidated when considering rules similar to those repealed by the CRA.
Instead, the Sixth Circuit decision gave determined agencies a green light when and if a Democrat becomes president.
Over the last several decades, the Presidency has boomeranged back and forth between the two parties. By any fair assessment, the 2024 presidential election was close. Although fear of Trump and the destructive and irreversible deregulatory actions he is taking make it difficult to look toward 2026, much less 2028, the judicial system moves on, making judgments like this one that could provide a long-lost opening when the value of protecting workers’ safety and health reemerges.