Senate vaccine mandate vote shows congressional weakness on regulations

Last week, the Senate voted 52-48 to use the Congressional Review Act to repeal the regulations issued by OSHA to mandate vaccines or COVID-19 testing in workplaces with more than 100 employees.  The vote generated headlines but the impact of the vote on actual COVID-19 vaccine policy is zero.

The Congressional Review Act allows Congress to pass resolutions of disapproval of executive branch regulations without having to worry about the filibuster in the Senate (yes, the same people who zealously defend the filibuster are happy to see it waived in policy areas where they would like quick Congressional action). It has generally only been successfully used at the beginning of a presidential administration to repeal regulations from the previous president. 

This is because a president will always veto CRA resolutions that overturn regulations issued by his administration (the only two exceptions were when President Trump signed two resolutions passed by Congress overturning rules from the Consumer Financial Protection Board which was still run by an appointee of President Obama). So, the resolution passed by the Senate overturning the OSHA vaccine mandate will — even in the unlikely event it is passed by the House — be vetoed by President Biden.

And the vaccine mandate that the Senate was attempting to stop isn’t even in effect, and may never be. Numerous states and employers have sued OSHA to stop the mandate from taking effect, and right now the mandate is subject to a nationwide stay pending the outcome of these cases.

To recap, the Senate voted to overturn a regulation that isn’t in effect and even if it goes into effect, the Senate vote will never actually succeed in reversing it.

Elected officials often engage in symbolic politics. Speeches on the floor of Congress late at night or sponsorship of bills that everyone knows will never get a vote in Congress allow members of Congress to score points with their constituents, generally at little cost. We may decry this symbolism, but it has been with us for a long time.

The challenge in this case, is that congressional influence over regulatory policy is often reduced to only symbolism. Historically, Congress has been a major player in regulatory policy. Congress wrote statutes requiring regulations. They held oversight hearings where particular regulations were debated. They put riders on budget bills prohibiting agencies from working on particular regulatory issues. All of these actions had real impact on regulations.

As the first branch of government, Congress should play a role in regulatory policy.

Major policy decisions such as how to combat climate change, how to provide adequate oversight of our financial system, and how to strike the balance between public health protection and individual choice should be influenced by democratically elected officials. Right now, with the exception of the President, they aren’t.

I wrote five years ago that on many issues we have been reduced to two branches of government: the executive and the judiciary.

The OSHA vaccine mandate seems to be a perfect example of this phenomenon: The executive branch issues the vaccine or testing regulation for large employers, along with ones that require vaccinations for contractors and hospital workers. The courts then debate whether or not those regulations can go into effect. And Congress passes resolutions that have only symbolic value.

Stuart Shapiro is professor and director of the Public Policy Program at the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him on Twitter @shapiro_stuart.