Midnight regulations, eight years ago it was all the rage in the media to demand that the Bush administration stop work on even the most benign regulatory changes so a new administration could make those decisions.
In response, the Bush White House stopped most regulations that would be deemed controversial putting them through a rigorous review at the Office and Management Budget before they could be released.
Today, it is reported that President Obama is ratcheting up the regulatory work in order to cram as many of his fundamental transformations into the regulatory rulebooks as possible before the new Trump Administration enters the White House.
The Congressional Review Act was put into place as a reform as part of the Contract with America in 1995, but it has only been successfully used to overturn a regulation once in its history — when President George W. Bush replaced Bill Clinton and signed language ending the Labor Department’s proposed ergonomics rule.
While many other attempts have been made to use the CRA, they have failed because of a weakness in the law — Congress must be able to overturn a veto by the sitting President to stop the regulation, putting an almost impossible barrier of a two-thirds vote in both Houses to preventing a regulation from taking effect.
The only time the CRA is feasible to use is at the beginning of a new presidency when the president’s party controls Congress and legislation is passed during the first 60 legislative days after a regulation is finalized.
The reason the ergonomics rule got overturned was because it was a Clinton rule, which was opposed by the incoming Bush — so Bush signed the bill.
And that is the almost exact situation we find ourselves on Jan. 20, 2016.
Donald Trump will be joining together with a Republican Congress that only needs to overturn Obama regulations with a simple majority if it is no more than 60 legislative days from the rule going final.
According to a report in Politico any rule finalized by Obama on May 23, 2016 or later would be subject to review by the new Congress. But the more time Congress spends in a lame duck session, the fewer rules get subjected to Congressional review by the new Congress, just one more reason to restrict the lame duck to a short-term funding resolution and nothing else.
The stars have aligned for a significant portion of Obama’s agenda to be sidelined using the Congressional Review Act. If, for conservatives, President-elect Trump’s election means nothing else, the Congressional rescinding of many of the late environmental and labor regulations before they do too much harm is a major victory for limited government.
All that needs to happen is for this current Congress to finish their work so the next one can stop Obama’s late term agenda before it gets up and running.