Yesterday afternoon the House of Representatives passed the Midnight Rule Relief Act, which would allow Congress to repeal multiple executive branch rules with a single piece of legislation. It would amend the Congressional Review Act, which currently requires a separate “resolution of disapproval” for each rule in question. My colleague Wayne Crews gave us a preview, back in November, of the impact the Midnight Rule Relief Act could have, while offering advice on how it could be made even stronger.
Since Congress is only in session part-time, 60 legislative days [the limit for regulations to be subject to the Congressional Review Act] go back a while. … Congress could, potentially, vote to overturn every Obama regulation finalized since around the end of May or beginning of June.
They won’t do that, of course, but my current, regularly updated “inventory” of significant rules that qualify as potential candidates since May 31 now stands at 142. Naturally not all of them are contenders, but it’s a substantial list.
The Midnight rules legislation should be amended to incorporate “significant guidance” as well. Agencies issue far more sub-regulatory guidance, memoranda, notices, bulletins, advisories, letter circulars and so on than they do regulations, and these often have regulatory effect, agency denials notwithstanding.
Importantly, the CRA and its legislative history plainly covers such regulatory dark matter, but that’s not something often heard about. The CRA adopted the broad definition of “rule” under the Administrative Procedure Act and therefore allows resolutions of disapproval for sub-regulatory guidance as well.
As Wayne suggests, there is a wealth of targets. The Federal Register broke its all-time high page count this year by a substantial margin, with federal agencies finalizing 18 rules for every new law coming out of Congress.
The Midnight Rule Relief Act itself faces an uncertain future in the Senate, however, where it is widely expected to encounter greater opposition. There is also more action on regulatory reform to be seen, with the House expected to vote on (and approve) the Regulations from the Executive In Need of Scrutiny (REINS) Act this afternoon. House Judiciary Committee Chairman Bob Goodlatte (R-VA) has also introduced the Regulatory Accountability Act of 2017 this week, which “combines a series of regulatory reform initiatives reported out of the House Judiciary Committee and passed by the House of Representatives during the 114th Congress.”
It’s possible that elements of all three bills will be combined into a single “legislative vehicle” for the Senate to consider, or during the deliberations of a conference committee. So even though it’s difficult to predict what exactly will make it into any new law that the President eventually signs, it is very encouraging that substantive regulatory reform is getting its most serious hearing on Capitol Hill in recent memory. Read more on CEI’s recommendations to the 115th Congress here.