Midnight Regulations
In the popular fairytale of Cinderella, the Princess has a golden carriage and a fancy ball gown, only until the clock strikes midnight. After midnight, it turns back to a pumpkin and she becomes the house maiden once again.
Similarly, after presidential elections conclude, the outgoing President has a limited number of days remaining with control of agencies that can produce new regulations. Historically, as the President’s clock ticks closer to midnight, a flurry of new regulations are hastily released, before he and his administration turn back to regular citizens.
These regulations are often overly broad, expensive, and can be used to override the will of the voters. The outgoing administration can force through an agenda that they were unable to generate the support to pass in a law.
In our great nation, legislation is meant to be debated and voted on by the legislators, who are held accountable to the people they represent. Passing legislation is not achieved through a ‘pen and a phone’ or the wave of a wand.
The week of November 14, the House of Representatives will vote on the Midnight Rules Relief Act of 2016 (H.R. 5982). This bipartisan bill, from the Judiciary Committee, amends the Congressional Review Act (CRA) and “creates a rapid-response method for Congress to overturn an outgoing presidential administration’s attempts to impose major regulations without the transparency and scrutiny expected in normal regulatory implementation.”
The CRA “…is an oversight tool Congress can use to overturn certain agency actions. The CRA requires agencies to report the issuance of ‘rules’ to Congress and provides Congress with special procedures under which to consider legislation to overturn rules, in the form of a joint resolution of disapproval. ... If a CRA joint resolution of disapproval is approved by both houses and signed by the President, or if Congress overrides a presidential veto, the rule at issue cannot go into effect or continue in effect.”
Additionally, “When a CRA joint disapproval resolution meets certain criteria; it cannot be filibustered in the Senate.”
The Midnight Rules Relief Act amends the CRA to allow “a joint resolution of disapproval (that) may contain one or more such rules if the report … for each such rule was submitted during the final year of a President’s term…. Such rules shall have no force or effect.”
In other words, if a President passes onerous last minute rules at the end of a term, unlike normal regulations, the next Congress and new President get a chance to roll back the regulations, no matter how many, all at once.
The term “midnight regulation” was first used during the final months of President Carter’s single term, according to the Mercatus Center. President Carter added 24,531 pages of regulations between Election Day and Inauguration Day. Mercatus Center reports that President Clinton published more than 26,542 pages, representing a 51% increase over the average number of pages published during the same quarter for the previous three years of Clinton’s term.
The practice is carried out by outgoing Presidents of both parties. The Bush Administration also increased the release of new regulations. In fact, the Mercatus Center found an average of a 17% increase in the volume of rules during this midnight regulation time span, stretching back to 1948, with a significant increase in years in which the Presidency switched parties.
During the eight years of President Obama’s leadership, thousands of pages of federal regulations have been forced onto the American people. From the overreaching Clean Power Plan to the Waters of the USA (WOTUS) rule to the Department of Labor’s new overtime rules that may cripple small businesses, the agencies have frequently expanded the influence of the federal government into Americans’ lives. This bill would discourage this President and future Presidents from trying to cram down new regulations when their days of power dwindle down to a precious few.
With a new President Trump, and a fresh administration, we have a better chance to roll back harmful regulations. But first, we should pass the Midnight Rules Relief Act in the House and implore the Senate to follow suit, to prevent President Obama from releasing a heap of new rules in the waning hours of his Presidency, and restore the power of legislating to the legislative branch.
If you have questions, concerns, or comments, feel free to contact my office. You can call my Abingdon office at 276-525-1405 or my Christiansburg office at 540-381-5671. To reach my office via email, please visit my website at www.morgangriffith.house.gov. Also on my website is the latest material from my office, including information on votes recently taken on the floor of the House of Representatives.
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