United States: U.S. House To Consider Bill To Limit, Overturn Midnight Regulations

Beth A. Viola is a Sr Policy Advisor and Virgilio Barrera is a Public Affairs Advisor both in our Washington, D.C. office.

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.

Footnotes

1. The Senate election in Louisiana has not been decided. This count reflects two independent senators (Bernie Sanders and Angus King) who caucus with the Democrats.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions