. . . ignoring Congress’ warning against a flurry of “midnight” regulations
The Obama administration’s agencies are in a frenzy of activity as they push new regulations before Obama leaves office in January. Republicans, however, are warning against such activity, saying that they will overturn them via the Congressional Review Act (CRA).
Federal agencies are rushing out a final volley of executive actions in the last two months of Barack Obama’s presidency, despite warnings from Republicans in Congress and the reality that Donald Trump will have the power to erase much of their handiwork after Jan. 20.
Regulations on commodities speculation, air pollution from the oil industry, doctors’ Medicare drug payments and high-skilled immigrant workers are among the rules moving through the pipeline as Obama’s administration grasps at one last chance to cement his legacy. So are regulations tightening states’ oversight of online colleges and protecting funding for Planned Parenthood.
Also moving ahead are negotiations on an investment treaty with China and decisions by the Education Department on whether to offer debt relief to students at defunct for-profit colleges. The Department of Transportation may also go ahead with a ban on cellphone calls on commercial flights and a rule requiring most freight trains have at least two crew members on duty.
. . . . As many as 98 final regulations under review at the White House as of Nov. 15 could be implemented before Trump takes office. Seventeen regulations awaiting final approval are considered “economically significant,” with an estimated economic impact of at least $100 million a year.
Regulation, unlike executive orders, cannot be undone with the stroke of a pen. Instead, Congress must exercise its authority under the CRA as noted by House Majority Leader Kevin McCarthy (R-CA) in a letter to government agencies warning against these “midnight” actions.
The Hill reported at the time:
House Majority Leader Kevin McCarthy (R-Calif.) sent a letter to government agencies Tuesday warning them against finalizing any pending rules or regulations in the waning days of the Obama administration.
“Should you ignore this counsel, please be aware that we will work with our colleagues to ensure that Congress scrutinizes your actions – and, if appropriate, overturns them – pursuant to the Congressional Review Act,” McCarthy said in the letter, which was also signed by House Committee Financial Services Chairman Jeb Hensarling (R-Texas).
. . . . In his letter Tuesday, McCarthy urged the agencies to consider the consequences of last minute rulemaking.
“By refraining from acting with undue haste, you will ensure that agency staff may fully assess the costs and benefits of rules, making it less likely that unintended consequences will harm consumers and businesses,” his letter said.
“Moreover, such forbearance is necessary to afford the recently elected administration and Congress the opportunity to review and give direction concerning pending rulemakings.”
This warning fell on deaf, defiant ears.
. . . [A]gencies have signaled full steam ahead despite the threat of Republicans consigning their work to oblivion, in a dynamic that will be crucial to deciding how much of Obama’s legacy survives the ascendant Trump era.
“As I’ve mentioned to you before, we’re running — not walking — through the finish line of President Obama’s presidency,” Environmental Protection Agency Administrator Gina McCarthy wrote agency employees the day after the Nov. 8 election. “Thank you for taking that run with me. I’m looking forward to all the progress that still lies ahead.”
The Foundation for Economic Education (FEE) provides an explanation of how the CRA combined with the passage of the Midnight Rules Relief Act (MRRA) can be leveraged to overturn these eleventh hour regulations.
One of the next Congress’ top priorities should be to fight this regulatory deluge.
One way is to pass the Midnight Rules Relief Act. This would strengthen the Congressional Review Act (CRA). Originally passed in 1996, the CRA allows Congress to overturn executive branch regulations. Sadly, it has not been very effective to date. While it has been invoked roughly a hundred times, the CRA has successfully overturned precisely one regulation: a Clinton-era ergonomics rule, and even then only because Clinton left office by the time Congress acted on it.
It is time to use the CRA again, and the Midnight Rules Relief Act (MRRA) can help. As it is now, CRA actions can cover only one rule at a time. Given that more than 1,000 regulations will be CRA-eligible next Congress, this could mean a lot of votes. The MRRA would allow Congress to package its repeals together, meaning one vote could cover a whole swath of rules. It would make reform easier.
How do things currently work? Once a new regulation is finalized, Congress has 60 legislative days to invoke the CRA and attempt to repeal it. Depending on how this year’s legislative calendar shakes out, that means any regulation finalized since roughly late May is potential CRA fodder for the next Congress, and President Obama will not be in office to stop them.
Here is the text of the MRRA, sponsored by Darrell Issa (R-CA):
(Sec. 2) This bill amends the Congressional Review Act 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. 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.
The bill has already passed the House (with three Democrats voting with the GOP) and will next need to pass the Senate before arriving on the president’s desk to be signed into law. Obama, of course, promised to veto it should it reach his desk. It won’t, however, be his desk after January 20th, 2017.
While President-elect Trump and the new Congress will have their hands full in the first months of the new administration, overturning as many harmful and crippling regulations as possible should be a top priority.DONATE
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