WASHINGTON ― Congress has sent President Donald Trump a measure undoing regulations controlling how states can make unemployed people pee in cups to prove they’re not on drugs.
Republicans said that the rules were too strict and didn’t give states enough leeway to test unemployment claimants for drugs. In a party-line vote on Tuesday, the Senate passed a resolution that simply eliminates the regulations.
“The Senate today has done the right thing by rolling back this Obama-era rule that told states how they had to implement unemployment insurance drug testing,” Sen. Lamar Alexander (R-Tenn.), chairman of the Senate committee that oversees unemployment, said in a statement.
The House had already approved the resolution in February, so now it’s headed to the White House, which has already indicated Trump would sign it.
During a debate before the vote on Tuesday, Sen. Ron Wyden (D-Ore.) said the resolution “simply vilifies unemployed workers who are actually less likely to use drugs than the general population.”
The measure is the latest salvo in a long-running battle over Republican proposals to drug test the poor and unemployed. Republicans have never put forward evidence of widespread drug abuse among unemployment insurance recipients, though they have cited anecdotes from employers complaining that they can’t find sober workers.
A coalition of civil rights and criminal justice organizations criticized the resolution in a letter to lawmakers this week. Grant Smith, of the Drug Policy Alliance, an organization opposed to the war on drugs, called the vote of the resolution “shameful.”
“They say it’s about helping states save money, but this would actually set up states to waste tremendous amounts of money,” Smith said in a statement. “Congress should be helping people get to work, not wasting taxpayer dollars to punish people who are trying to get back to work.”
When Congress passes a law, a federal agency is often told to come up with a “rule” for carrying out the law. If Congress doesn’t like how the rule turns out, it has the power under the Congressional Review Act to junk the rule. The power has rarely been used until now, since it basically only works in a situation where one party takes control of both Congress and the White House.
The resolution approved Tuesday struck down a rule the Department of Labor finalized in August, four years after Congress had passed legislation giving states authority to screen some unemployment claimants for drugs. In 2012, Democrats compromised on allowing the testing in order to win Republican support for an extension of long-term jobless benefits. The testing provision said states could only test laid-off workers seeking new work in occupations that regularly require testing, which Democrats said wouldn’t be very many.
Republican lawmakers and governors like Wisconsin’s Scott Walker disagreed with the Labor Department’s analysis of which occupations fit the bill, saying the department had construct the rule too narrowly. Walker is also on a crusade for leeway to drug test food stamp recipients.
The Congressional Review Act has been used so rarely that it’s not clear what happens next. The law says agencies that have a rule disapproved aren’t allowed to issue a new rule that is “substantially similar” to the old one. Nevertheless, Sen. Orrin Hatch (R-Utah) said Tuesday that the resolution “would wipe this regulation off the books and give [the Department of Labor] an opportunity to put forward something new that better reflects Congress’ intent.”
It’s unclear who would have standing to challenge a new rule that is “substantially similar” to the old one, or who would decide the case; the Congressional Review Act doesn’t say.
In the case of unemployment drug testing, it’s possible deleting the old rule will leave states with no authority to drug test the jobless until a new rule is written.
“I think that states are just going to be thrown into bedlam,” Wyden said.
People are only eligible for unemployment insurance if they’ve been laid off through no fault of their own after having worked steadily for most of the previous year.