A urine container used for a drug test is displayed at annual Drug & Alcohol Testing Industry Association conference on April 16, 2004 in Seattle. (Photo by Ron Wurzer/Getty Images)
By Meg Wagner
Undoing an Obama-era regulation
President Donald Trump is expected to sign off on a new law that will likely subject more unemployed Americans to drug tests before they can claim jobless benefits.
The resolution — approved by the Senate on Tuesday, March 14th after passing in the House in February — nixes a Labor Department regulation that limited how many unemployment-benefit applicants states could test for drugs. The old rule, implemented under former President Barack Obama, mandated that states could only test applicants if they were looking for work in jobs that require regular drug screenings.
The repeal measure narrowly passed the Senate, 51–48, under the Congressional Review Act, which allows Congress to undo some recently implemented federal regulations with a simple majority. The House used the same maneuver to get it through their chamber last month with a 236–189 majority.
The bill now heads to President Trump’s office for final approval. The White House said that the president will sign it into law, although officials have not laid out a timetable for when that could happen.
Republicans argued that the Obama-era regulation gave the federal government too much oversight on an issue that should have been decided at the state level.
"As we saw too often, the Obama administration went beyond its legal authority in creating legislation that limits the role of state governments," Senate Majority Leader Mitch McConnell (R-Ky.) said.
But Democrats have warned that the new law essentially vilifies jobless Americans and plays into the often-false stereotype that unemployed people are more likely to use drugs. (Studies about the correlation between drug use and employment status are mixed).
"If you're looking for work, you're guilty of drug use until being proven innocent,” Sen. Ron Wyden (D-Ore.) said.
The little-used maneuver that got it through
The Department of Labor regulation went into effect in September and specified exactly how states could use a 2012 law that allowed them to drug-test certain unemployment benefit seekers.
While the 2012 law broadly stated that states could test applicants looking for work in fields that that require frequent drug screening, the 2016 regulation more narrowly defined what that meant, giving a specific list of eligible jobs, including commercial drivers, flight crew members, and anyone who carries a firearm at work.
But since the 2016 regulation went into effect less than 60 legislative days ago, it was eligible for repeal under the Congressional Review Act. The little-used maneuver allows Congress to overturn newly implemented federal regulations with a simple majority (instead of the standard three-fifths vote).
The regulation-busting resolutions still need to be signed into law by the president, who typically is the person who oversaw the regulations to begin with. That means that the maneuver is only effective during a regime change, when a new president aligned with Congress can undo the old party’s president’s rules. Before this year, it had only been used once before, when President George W. Bush nixed a Clinton-era labor safety regulation.
The drug test regulation is the eighth Obama-era regulation the current Congress has killed through the Congressional Review Act. Among the stifled regulations are a measure that blocked some disabled Americans with mental health conditions from buying guns.
Back to the states?
After President Trump signs the anti-regulation resolution into law, the Department of Labor will have the chance to write a new regulation in its place — however, the Congressional Review Act does stipulate that new orders can’t be too much like the nixed ones. Labor officials have not indicated what the possible replacement could include.
Multiple states have expressed interest in drug-testing more of their benefits-seeking residents, and it’s possible that the deregulation may create room for them to proceed with more aggressive drug testing policies.
Florida enacted a law in 2011 that would have required that all welfare benefit recipients undergo drug screenings. Two federal courts deemed it unconstitutional, and Gov. Rick Scott announced he wouldn’t appeal to the Supreme Court. His failed legal battle left Florida taxpayers with a $1.5 million bill.
In 2015, Wisconsin Gov. Scott Walker preemptively sued the Obama administration for the right to drug-test recipients of the state’s public benefit programs, such as welfare and unemployment. The case was tossed in September, with a judge arguing that Walker had no grounds on which to sue, since the federal government had not actually rejected his request.
Democrats from states that have tried to enact mandatory drug testing said the new deregulation could open the door for more widespread screenings.
"Yesterday, congressional Republicans continued their attack on the poor by forcing drug testing as a prerequisite for receiving unemployment benefits. As a former recipient of such services, I am appalled by the Republican Party’s discriminatory policies and deeply-sown disdain against those battling poverty,” Rep. Gwen Moore (D-Wis.) said.