The Republican-controlled U.S. House of Representatives has passed a bill that would allow Congress to reject all federal regulations finalized since January in one fell swoop.
Labeled the Midnight Rules Relief Act of 2016, H.R. 5982 would allow the 115th Congress to sidestep the current requirement that each regulation that is the subject of an override attempt be the subject of a separate resolution.
So-called “midnight rules” are regulations that an administration completes during the time between a presidential election in November and the inauguration of a new President on the following January 20.
Sometimes these late regulations are used by an outgoing administration to assure that its policy initiatives can endure for a time. The Administrative Procedure Act requires that agencies develop a new factual record before they may repeal or significantly modify existing rules.
Most midnight rules are not controversial, though. A 2012 study by the Administrative Conference of the United States concluded that are “relatively routine matters not implicating new policy initiatives by incumbent administrations” and that the “majority of the rules appear to be the result of finishing tasks that were initiated before the Presidential transition period or the result of deadlines outside the agency’s control (such as year-end statutory or court-ordered deadlines).”
The Congressional Review Act, enacted into law in 1996, permits Congress to reject regulations in a process that bypasses the usual risks of legislative gamesmanship in the U.S. Senate.
Under the CRA, amendments to a resolution that rejects a “major” federal regulation are not permitted. No holds by individual senators, and no filibusters by opponents of a resolution that would eliminate a federal regulation, are allowed.
Congress has 60 days following the date on which both chambers of Congress have received a notice that a regulation has been issued in which to pass a CRA resolution that disapproves it. The 60 day-long clock resets at the beginning of a new Congress if the regulation was issued during the final 60 “session” days, in the case of the Senate, or the final 60 “legislative” days in the case of the House of Representatives, of the preceding Congress.
Although opponents of various regulations have introduced dozens of CRA resolutions in the 20 years since enactment of that statute, it has been invoked only one time. An Occupational Health & Safety Administration rule that addressed ergonomics, which the Clinton administration had finalized in November 2000, was turned away in 2001.
H.R. 5982 would need to pass the Senate and be signed by the President to become law. The Senate has not yet taken up the measure. Moreover, President Barack Obama has threatened to veto H.R. 5982, which cleared the House Nov. 17 by a 240-179 vote.
“[P]roviding for an arbitrary packaging of rules for an up-or-down vote, as this bill does, is unnecessary,” a statement issued by the Executive Office of the President on Nov. 12 said.
Three House Democrats voted with the majority GOP to pass the bill.