HIGHLIGHTS:

  • The U.S. House of Representatives will consider legislation this week to limit midnight rulemaking and strengthen the Trump Administration's ability to overturn last-minute regulations adopted by the Obama Administration.
  • Incoming administrations have limited powers to change or eliminate midnight regulations after they have been published as final in the Federal Register.
  • The Midnight Rules Relief Act of 2016, H.R. 5982, would allow Congress to consider a joint resolution to disapprove multiple regulations that federal agencies have submitted for congressional review within the last 60 legislative days of a session of Congress during the final year of a president's term.

The U.S. House of Representatives will consider legislation this week to limit midnight rulemaking and strengthen the Trump Administration's ability to overturn last-minute regulations adopted by the Obama Administration. The Midnight Rules Relief Act of 2016, H.R. 5982, would amend the Congressional Review Act (CRA) to allow Congress to consider a joint resolution to disapprove multiple regulations that federal agencies have submitted for congressional review within the last 60 legislative days of a session of Congress during the final year of a president's term.

If the bill is enacted into law, Congress may disapprove a group of such regulations together (i.e., en bloc) instead of the current procedure of considering only one regulation at a time. While the bill is not likely to become law, it does set the theme for the incoming administration's efforts to overturn or limit federal regulations.

In recent presidential administrations, federal agencies have increased the number of regulations they issue during their final months in office. This phenomenon is often referred to as "midnight rulemaking" as an outgoing administration attempts to complete its work and achieve policy goals before the end of its term. Because it may be difficult to change or eliminate rules after they have taken effect, midnight rules help cement a president's legacy and limit the actions of incoming administrations.

According to the Congressional Research Service, in the final six months of 2008, federal agencies published 63 major rules – compared with 41 in 2007. Similarly, agencies issued 52 major rules in 2000 compared with 30 issued over the same period in the previous year. The Obama Administration currently has 91 major final rules under interagency clearance – the last step required prior to publishing a major final rule in the Federal Register.

Administrative Options

The incoming Trump Administration has a limited number of administrative tools available to stop midnight regulations. Past presidents have imposed a moratorium on new regulations from executive departments and independent agencies through the use of an administrative memorandum, such as the Andrew Card memo in the Bush administration, to control last-minute regulations. Such moratoria may be accompanied with a request that federal agencies delay the effectiveness date of final published regulations. The Trump Administration may also voluntarily withdraw any proposed rules that have not been published in the Federal Register as final rules prior to the former president leaving office.

Once an outgoing administration's final rule has been published in the Federal Register, the incoming administration may try to limit its effectiveness by selective enforcement of key provisions, but the rule remains subject to third-party lawsuits and judicial enforcement. The only way for an incoming administration to undo a final rule published in the Federal Register is to follow the federal rulemaking process, as prescribed in the Administrative Procedure Act (APA). See 5 U.S.C. §551 et seq.

Under the rulemaking procedures established by the APA, agencies are generally required to publish a notice of proposed rulemaking in the Federal Register, allow stakeholders to comment on the proposed rule and, after considering those comments, publish the final rule. These APA requirements apply when an agency is issuing, amending or repealing a rule. These actions are also subject to judicial review.

Legislative Options

Congress may examine the issuance of proposed and final "midnight" regulations at the end of an administration and use its legislative power to overturn or change a regulation. To overturn or change a regulation, Congress may use one of the following tools:

  • Congressional Review Act (CRA): Congress may use the expedited procedures provided in the CRA to disapprove agency rules. To learn more about the Congressional Review Act and how it works, see the authors' article on congressional challenges to the Clean Power Plan.
  • Appropriations Riders: Congress can add provisions to an agency appropriations bill to prohibit certain rules from being implemented or enforced.
  • Statutory Amendment: A change in the underlying statue could force an agency to amend a regulation that has been already issued, or it could provide additional instruction to an agency while a rule is under development.

Due to the narrow, 51-481, margin of Republican control in the Senate, the CRA is likely to play a significant role in the Trump Administration's efforts to overturn regulations. Under the CRA, resolutions of disapproval are privileged and not subject to a filibuster. They also require only a simple majority to pass.

Appropriation riders, which bar the use of funds to carry out a regulation, will also be an attractive option, as they are included in "must-pass" legislation to fund the government. However, these riders are less attractive than CRA resolutions as they are enforceable only in the fiscal year covered by the spending bill.

Finally, Republicans may attempt to change underlying statues to amend or invalidate regulations. However, these actions would likely face stiff opposition in the narrowly controlled Senate, which still requires at least a 60-vote majority to overcome a filibuster.