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Counteracting the Midnight Rush of Regulations

Now that the White House will officially be switching parties, the outgoing Obama administration will likely pass as much of its regulatory agenda as quickly as it can, while it can. This common practice is called a midnight rush. In fact, the daily Federal Register, where new regulations are published, has already set a new all-time record page count as of November 17th. 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.

It remains to be seen how President-elect Trump would treat CRA actions, but it would improve relations with his party if he approved them. He may welcome CRA actions on rules ranging from power plants to the “MyRA” effort to get retirement funds to invest in government debt. A Wall Street Journal editorial lists a few other candidates, and my colleague Marlo Lewis helpfully gives five of his own. Wayne Crews gives 140 more, and has more about MRRA here.

By my count, there are 16 “economically significant” regulations that fall within the CRA’s 60-day window, ranging from food labeling to school lunches to refrigerators that would also make good repeal candidates. Each of these rules costs at least $100 million per year.

Regulatory reform deserves to be one of the top items on Congress’ agenda, both during the current lame duck session and the next session that begins in January. Reviving the Congressional Review Act is one of many tools available, and strengthening it with MRRA can only help. The list also includes passing the REINS Act and the SCRUB Act, among other reform bills.