Tuesday, November 29, 2016


A new law has been introduced in the House of Representatives, and has now gone to the Senate for consideration, that aims to curb "last minute" Executive Orders by the President, referred to as "Midnight Rules."  

The Bill, authored by Congressman Darrell Issa, will enhance congressional powers to undo "rules" issued by an outgoing President at the end of his term to ostensibly advance his agenda beyond the end of his administration.  Current law allows Congress to do this, but permits legislators to consider and take action on such rules only one at a time.  When an entire package of rules are issued, the logistics to address each rule individually can be a formidable task for a new congress at the beginning of a new administration.

The Midnight Rules Relief Act (H.R. 5982) is set to remedy this situation. In a report accompanying the legislation, submitted by Representative Bob Goodlate (and others), Goodlatte makes the case for H.R. 5982 including the following:

"...midnight rules can be issued to thwart or blunt an electoral mandate issued by the voters, as a defeated Administration or party leaves office. A wave of midnight regulations also can overwhelm Congress' ability to check regulatory overreach through CRA disapproval resolutions, oversight and other means. Under current law, for example, CRA resolutions can disapprove only one regulation at a time, rather than en bloc to meet a body of end-of-term regulations. Outgoing Administrations, moreover, may be less sensitive to Congress' oversight and appropriations authority, since they can issue regulations and leave office before Congress can respond comprehensively through these tools. Both Congress and incoming presidential Administrations can be hindered in the disapproval or rescission of midnight rules by the pressing need to devote congressional and executive resources to the passage and implementation of the electoral mandate given to a new Congress and a newly elected President ... The hurry to complete regulatory activity towards the end of an Administration, moreover, often results in lower quality regulations. Agencies are rushed to complete their work and issue new rules in time, Office of Information and Regulatory Affairs (OIRA) review is diminished, and neither agency nor OIRA personnel have sufficiently strong incentives or latitude to conduct searching analyses of whether the rules should or should not be issued or modified, because outgoing Administrations have already made clear that they wish to proceed with the rules..."

While there have been previous attempts at oversight and regulation of "Midnight Rules," the proposed legislation includes language that allows congress to consider nullifying more than one rule at a time. The report says:

"...By reforming this authority to allow en bloc disapprovals, H.R. 5982 offers a powerful way for an incoming Congress, in one fell swoop, to dispose of midnight rules that should be rejected. This efficient and effective means of response, moreover, is highly flexible. There is no constraint on the number of rules that can be included in an en bloc resolution, other than that the rules must be drawn from those submitted within the last 60 legislative days of the prior Congress. If only a handful of midnight rules are objectionable, only they need be included. If larger numbers are objectionable, all of them can be included. The matter is left to the assessment of the succeeding Congress, in light of what the outgoing Administration submitted, what the voters communicated in the election, and what regulations can muster support for inclusion in a successful resolution ... The CRA's current provision for rule-by-rule disapprovals provides only a minimal check on the desires of outgoing Administrations to promulgate problematic midnight rules. The Midnight Rules Relief Act would turn that table entirely. Administrations working under the ``Sword of Damocles'' of a succeeding Congress' disapproval with just one resolution of any or all midnight rules that defied the voters or were otherwise abusive or defective would receive a strong incentive to avoid the promulgation of such rules altogether, and instead focus their resources on the promulgation of rules with the political support and sound design and analysis needed to endure into succeeding Administrations..."

The Goodlatte report affirms that:

"...In the face of tepid Executive Branch discipline and the lack of legislative reform, the potential for midnight rule abuse and misfeasance continues apace. According to the Obama administration's 2016 Spring Unified Agenda of Regulatory and Deregulatory Actions, released June 1, 2016, there are at least $5.3 billion in planned costs in just the period from November to December 2016 ... These include, for example, a final Renewable Fuels Standard and requirements for Systemically Important Financial Institutions.\8\ And, although Administrator Shelanski pledged to curtail the midnight rush of regulation, the trend through the first half of 2016 revealed the typical surge of end-of-term rules. Compared to similar periods during President Clinton and President Bush's tenure, the Obama administration has approved 38 percent more economically significant regulation than at any time since 1996, when the Clinton administration passed through its first midnight rule period ..."

The law, approved by the House, has now gone to the Senate for debate.  After that, the President has final say.  If he vetoes it, Congress may choose to override the veto, providing there is enough support in both houses to do so. But even if the current actors thwart this effort, a new congress and a new administration may then pass the law or a newly drafted piece of legislation that can put period to "rush" legislation, and prevent costly rules that may affect or impede new policies mandated by voters in the recent presidential election.

Congressman Darrell Issa summed it up this way:

“...This bipartisan bill is about reviving the separation of powers to ensure our laws are written by the Representatives we actually vote for – not unelected and unaccountable bureaucrats who are on their way out the door. Presidents of both parties have made habit of enacting scores of last-minute regulations, with little oversight, to sneak in as much of their agenda as possible before the clock runs out on their time in office. The bill helps ensure this President, and any future president, will be held in check and that their policies have the proper level of scrutiny by both Congress and the American people..."