The Volokh Conspiracy

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Could the OSHA Vaccine-or-Test ETS Fall Prey to the Congressional Review Act?

Several Republicans are seeking to overturn the new OSHA rule. Despite the razor-thin margins in both Houses, a repeal resolution will not get enacted.


The new Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard is already coming under fire. Multiple lawsuits have been filed challenging its legality, and more are on the way as conservative state attorneys general join the fray. (Fortunately for court watchers, these suits will be consolidated.)

Members of Congress are also taking aim at the ETS. Indiana Senator Mike Braun has announced his plans to try and repeal the OSHA ETS through the Congressional Review Act. Under the CRA, Congress may reject a new regulation with a simple majority vote in each house. Of particular importance, procedural tactics like the filibuster are unavailable to block a vote on a CRA resolution. Nonetheless, invocation of the CRA will not result in repeal of the OSHA rule.

The Washington Times reports that Senator Braun already has the support of forty of his Senate colleagues. If he can corral all 50 Senate Republicans, he would need only one Senate Democrat for a CRA resolution to pass the Senate. If Republicans hold ranks, a half-dozen or so Democrat defections would send the resolution to the White House, but that is where the story will end. There is little question President Biden would veto a CRA resolution rejecting the OSHA ETS.

If a CRA resolution cannot pass, why would Republicans push one? Politics. The CRA can be used to force a vote on the resolution and make members of Congress go on record. Insofar as the OSHA ETS is unpopular in some parts of the country or with some constituencies, a CRA vote may have political value.

For more background on the CRA, see this post. Also, I discussed the legal vulnerabilities of the OSHA ETS in this post, which includes an update on my disagreements with my co-blogger Ilya Somin. Time permitting, I will post further on the interesting preemption issues raised by the OSHA ETS.