“By their own admission, leaders of the Republican Revolution of 1994 think their greatest mistake was overlooking the power of the veto. They gave the impression they were somehow in charge when they weren't.”

--Mitch McConnell

The Congressional Review Act (“CRA”) is a tool which Congress may employ to stop in its tracks runaway executive action.  Congress can, in essence, veto executive agency regulations within a 60-day period after they become final agency action. If Congress passes a nullification, the executive agency’s rulemaking is dead, and it cannot return to the well again with new rules that are substantially the same.

The most prominent example of a CRA was the Obama Administration’s government contractor responsibility executive order that effected a constructive disbarment of contractors with poor labor compliance records on something like 12 indicia of responsibility. Congress acted at the start of the Trump Administration to kill the late term issuance of that executive order.

Earlier this month, BNA led with a blog about the likely coming 2024 Republican effort to weaponize the CRA and take aim at the Biden Administration’s possible last-minute scramble to issue labor and employment regulations.  BNA says that would be “potentially  threatening [to] several high-profile US Labor Department regulations currently being wrapped up by the Biden administration.” See Punching In: Congressional Review Act Threat Looms for DOL Rules (bloomberglaw.com). BNA suggests this will come into play for rules published between May and September next year. Of course, with the Democrats still razor thin control of the Senate, and Biden’s veto power, most of this is just play acting, at least until the start of the next congress.

But the one sure thing is that 2024 is likely to be a contentious year for labor policy. First up is the Department of Labor (“DOL”) budget which must be resolved by early Feb. 2024, unless  extended yet again at existing levels of funding. The conservative wing of the Republican Party is targeting DOL for steep cuts, including elimination of the Woman’s Bureau (around since 1920) and the Jobs Corps. And the year will close with a presidential election likely to set the course for the next four years. In short, what’s past – contentious disputes over labor policies – is prologue.