Says a regulation impacting more than 80 million Americans must be reviewed by Americans’ elected representatives
WASHINGTON—United States Senator Bill Hagerty (R-TN), a member of the Senate Appropriations Committee, sent a letter to U.S. Secretary of Labor Martin Walsh to confirm that President Joe Biden’s announced rule requiring that, in order to work, all employees of private employers with 100 or more employees must be vaccinated or subject to at-least-weekly COVID testing, will be submitted to Congress, as required under the Congressional Review Act (CRA).
“Plainly, a binding order from OSHA [Occupational Safety and Health Administration] imposing new requirements impacting more than 80 million Americans and carrying the threat of civil and criminal penalties is a rule for CRA purposes,” Hagerty wrote.
Hagerty said yesterday that taking the vaccine is a personal decision in consultation with a person’s doctor, not an order from the federal government. Hagerty went on to say that “not only is this an invasion of the doctor-patient relationship, and an attempt to distract from President Biden’s botched withdrawal from Afghanistan, but having traveled the state over the last month, our businesses, particularly small ones, cannot find enough employees to hire, and the last thing they need is more draconian, one-size-fits-all, federal regulations that will make it even harder to hire and retain employees.”
The CRA provides for Congress to oversee the federal regulatory process for implementing legislation by allowing it to review and potentially revoke, through a resolution of disapproval, rules that substantively affect the American people. Under the CRA, rules must be submitted to Congress under the CRA before they can take effect, at which point they can be brought for a vote under expedited procedures. When an agency fails to submit to Congress a policy that constitutes a rule under the CRA, a member of Congress may request that the Government Accountability Office (GAO) issue an opinion regarding whether the rule should have been submitted to Congress. If GAO finds that the policy should have been submitted to Congress because it constitutes a rule, then such rule can be brought before Congress for a vote under the same expedited procedures.
Hagerty is requesting that the Secretary reply by September 17.
Hagerty recently wrote to GAO, seeking an opinion regarding whether the CRA applies to recent policy changes issued by the Department of Homeland Security concerning enforcement of immigration laws and border security.
The text of the letter to Walsh is below.
Dear Secretary Walsh:
Yesterday, President Biden stated that the Department of Labor, through the Occupational Safety and Health Administration (OSHA), will be issuing an Emergency Temporary Standard (ETS) requiring that, in order to work, all employees of a private employer with 100 or more employees must get a COVID-19 vaccine or produce at-least-weekly negative COVID-19 tests. According to the White House, this order will apply to more than 80 million private-sector employees and impose civil or criminal penalties for violations. I write to confirm that you will comply with the requirements of the Congressional Review Act (CRA) in issuing this directive.
Under the CRA, an agency action that falls within the definition of a “rule” must be submitted to Congress for review before it can take effect. 5 U.S.C. § 801(a)(1)(A). “The definition of a rule under the CRA is very broad.” Government Accountability Office B-323772, at 3 (Sept. 4, 2012), available at https://www.gao.gov/assets/b-323772.pdf. In pertinent part, the CRA defines a rule as: “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.” 5 U.S.C. § 551(4). This definition is not limited to directives requiring notice, public comment, or other similar procedures under the Administrative Procedure Act.
Plainly, a binding order from OSHA imposing new requirements impacting more than 80 million Americans and carrying the threat of civil and criminal penalties is a rule for CRA purposes. So that Americans’ elected representatives may timely review this ETS as required under federal law, please confirm by Friday, September 17, that you will submit it to Congress before it purports to take effect.
Thank you, and I look forward to your prompt reply.