Review and Repeal: How Trump’s Use of the Congressional Review Act Could Spell Trouble for Employees

By: Sydney Spinner

Back in November, my earlier blog post posed the question: “Where does the country stand under a Trump Presidency, when blue-collar workers are one of the key constituencies that propelled Trump into the White House, but as a businessman, his practices are often anti-union, pro-employer, and with little regard for the plight of workers?”[1] Well, with the recent forty nine to forth eight Senate vote to apply the Congressional Review Act (“CRA”) to strike down Obama’s Fair Pay and Safe Workplaces executive order, President Trump will have his chance to pick a side.[2] Trump faces a taxing choice: does he go with what his party wants,[3] or with the working-class voters who elected him?[4]

The Congressional Review Act gives Congress sixty days to repeal regulations issued by the Obama administration, with just a simple majority.[5] As part of the “Contract with America,” Newt Gingrich promoted the CRA, which Clinton signed into effect in 1996.[6] It was supposed to allow Congress to nullify regulations in “certain very limited circumstances,” and up until now, had only been used once by George W. Bush.[7] On February 14th, House Speaker Paul Ryan, R-WI, tweeted that “@POTUS just signed into law the first of many Congressional Review Act bills to help our economy.”[8] He emphasized that CRA legislations would “provide[] relief for Americans hurt by regulations rushed through at the last minute by the Obama administration,” and will result in “jump-starting our economy,” creating jobs, and helping businesses thrive.[9]

If the President signs the CRA resolution, he is choosing a side, and not the side of the worker.[10] This resolution would nullify the “blacklisting rule,” which “requires federal contractors and subcontractors bidding on any federal contract worth more than $500,000. . . to disclose ‘violations’ of labor laws that had occurred in the three years leading up to the contract bid . . . .”[11] The original executive order was “aimed to protect contractor employees from wage theft and unsafe working conditions . . . .”[12] While labor unions are in favor of these rules, “[t]he American Federation of State, County and Municipal Employees . . . said the regulation would prevent lawbreaking companies from winning contracts funded by taxpayer dollars;” business groups are harsh critics who label them the “blacklisting” regulations, and claim they are unduly burdensome.[13] Senator Chuck Schumer, D-NY, implored Trump to stand up for the employees when he said, “[y]ou are not going to get away with constantly saying you’re in favor of working people, but signing legislation that hurts them.”[14]

The Democrats emphasize that it is a compliance measure, not a punishment, and the goal of the rule is to keep the government from employing companies who mistreat their workers.[15] The Obama administration explained that the rules “would focus only on the most egregious violations, and that companies with serious, repeated, willful violations would be the ones that could be barred from the future bidding.”[16] Senator Richard Blumenthal, D-CT, said: “We must do everything possible to defend American workers. . . [i]t’s not about blackballing or blacklisting companies but creating a level playing field for all contractors.”[17]

The Republicans stand in stark opposition on the issue.[18] Senator Ron Johnson, R-WI, said: the “blacklisting” rule, “has the very real potential of subjecting perfectly innocent contractors to blackmail and extortion tactics during union contract negotiations.”[19] It would come with an astonishing $398 million per year price tag.[20] Senate Majority Leader Mitch McConnell, R-KY, said, “Apparently the last administration thought it would be a good idea to prevent American jobs, raise prices, and depress wages and lower opportunities, and yet the administration went on a regulatory rampage at a time when we should have been looking to do the opposite.[21]

Since the Republicans have control of both the House and the Senate, and the CRA allows for a simple majority, this is just one of many regulations on the chopping block.[22] This is the first time in his Presidency that Trump will have to choose between labor and big business, and all the evidence points toward an anti-employee decision.[23] Repealing the Fair Pay and Safe Workplace’s executive order would be a devastating blow to employees, and could even put them in danger, since unsafe working condition violations can result in injuries.[24] As my earlier blog predicted in November, all the campaign promises that got him into office will put him in a predicament for which side to choose.[25] Will Trump stick up for the unions, the blue-collar workers, the little guys, or will he do what he has historically done, and favors his big business pals?

 

[1] Sydney Spinner, Playing the Trump Card: How Unions Fare Under President-Elect Trump, LEJER (Nov. 22, 2016), https://thelejer.wordpress.com/page/3.

[2] Eric Morath & Natalie Andrews, Senate Votes to Overturn Obama-Era Workplace Rule, Wall St. J.: Politics (Mar. 6, 2017, 8:26 PM), https://www.wsj.com/articles/senate-votes-to-overturn-obama-era-workplace-rule-1488849989?mod=e2fb.

[3] Tim Devaney, Senate votes to strike down ‘blacklisting rule’, The Hill (Mar. 6, 2017, 6:32 PM), http://thehill.com/regulation/labor/322616-senate-votes-to-strike-down-blacklisting-rule.

[4] Id.

[5] Morath, supra note 2.

[6] Kristine Sims, Fair Pay and Safe Workplaces and its “executioner”: The Congressional Review Act, JDSupra (Mar. 16, 2017), http://www.jdsupra.com/legalnews/fair-pay-and-safe-workplaces-and-its-84714.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Charles S. Clark, Senate Narrowly Passes Repeal of Obama Fair Pay, Safe Workplace Rule, Gov. Exec. (Mar. 6, 2017), http://www.govexec.com/oversight/2017/03/senate-passes-repeal-obama-fair-pay-safe-workplace-rule/135939.

[13] Morath, supra note 2.

[14] Devaney, supra note 3.

[15] Id.

[16] Morath, supra note 2.

[17] Clark, supra note 12.

[18] Id.

 

[19] Id.

[20] Id.

[21] Michael Macagnone, Ax Of Fair Pay Safe Workplaces Rule Now Up To Trump, Law360 (Mar. 6, 2017, 8:58 PM), https://www.law360.com/articles/898584 Senate Narrowly Passes Repeal of Obama Fair Pay, Safe Workplace Rule /ax-of-fair-pay-safe-workplaces-rule-now-up-to-trump.

[22] Devaney, supra note 3.

[23] Morath, supra note 2.

[24] Clark, supra note 12.

[25] Devaney, supra note 3.

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