As President Barack Obama’s term of office comes to a close, a new issue percolates in Washington: What end-of-term rules (also known as midnight regulations) will his administration produce?
Given the president’s prolific executive lawmaking, will Congress be able to stop them?
“The federal lawmaking process should be simple,” says Rep. Markwayne Mullin, R-Okla. “The legislative branch writes the laws, and the executive branch enforces them”—emphasis on “should be simple.”
Federal agencies under Obama have added scads of new regulations that dwarf Congress’ annual output of new federal laws. During Obama’s first five years in office, federal agencies added 17,522 pages of regulations, an average of 3,504 per year (compared with an average of 2,490 during the Bush administration).
Looking to the end of Obama’s term, scholars at the Mercatus Center have identified at least 50 potential midnight regulations, each of which could have an impact on the economy exceeding $100 million.
This list alone shows an alphabet soup of several federal agencies that are all potentially seeking to rush out rules before Obama leaves office:
- Architectural and Transportation Barriers Compliance Board (ATBCB)
- Department of Homeland Security (DHS)
- Department of the Interior (DOI)
- Department of Energy (DOE)
- Department of Labor (DOL)
- Department of Transportation (DOT)
- Environmental Protection Agency (EPA)
- Department of Health & Human Services (HHS)
These range from the Department of Transportation’s “Public Transportation Agency Safety Plan” and more emissions regulations to the Department of Energy regulations on everything from ceiling fans to residential dishwashers, furnaces, dehumidifiers—even “Certain Small Diameter, Elliptical Reflector, and Bulged Reflector Incandescent Reflector Lamps.”
Last year was a record-setting year for new regulations, and 2016 could easily top that if Congress does not reclaim its legislative supremacy over the administrative state. The 2015 Federal Register, where federal agencies’ proposed and final rules are published, boasts 82,035 pages. This is more than any year since 1936—when President Franklin D. Roosevelt’s massive regulatory expansion, The New Deal, was at its peak.
Last year also saw 3,408 agency regulations, far outdoing Congress’ output of 87 bills “by of a factor of 39.” It has been estimated (although no one really knows for sure) that there are more than 300,000 federal regulations that carry potential criminal penalties for violations.
There is no telling what new last-minute criminal regulations will be adopted as Obama prepares to leave office. If history is any guide, though, the end of a presidential tenure is likely to produce some unwelcome surprises.
Much to the relief of the average residential dishwasher owner or small business owner, Rep. Tim Walberg, R-Mich., introduced The Midnight Rule Relief Bill in late February, which would set a moratorium on agency rulemaking from the day after the election of a new president until after inauguration day.
The bill would pre-empt any rulemaking unless it is proven not to result in any of four outcomes:
(1) An annual effect on the economy of $100,000,000 or more. (2) A major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. (3) Significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. (4) A significant economic impact on a substantial number of small businesses.
The bill includes exceptions for cases in which the president issues an executive order asserting that the rule is necessary “because of an imminent threat to health or safety or other emergency; … for the enforcement of criminal laws; … national security,” or for “implementing an international trade agreement.”
Obama might veto a bill that limits his administration’s ability to promulgate regulations—but a veto would not necessarily kill the bill. The U.S. Constitution provides that before a bill can become law, it must pass both houses of Congress and be sent to the president for approval. If the president vetoes the bill, Congress can override that veto with a two-thirds vote in both houses of Congress.
Even if it is vetoed, The Midnight Rule Relief Bill gives voters one if not two opportunities to see their representatives vote on a bill that would curtail the executive branch’s power to write law.
Voters can use that to gauge how their representatives value the Constitution’s separation of powers—specifically, the value of protecting their prerogative to exercise “all legislative powers [t]herein granted,” rather than delegating that prerogative to agencies.
The Midnight Rule Relief Bill presents Congress with an opportunity to begin to reclaim its authority to consider new regulations, which have the full force and effect of laws, that will have a dramatic impact on our economy, and to consider these laws in due course, not as the president packs his bags and vacates the White House. In either case, the bill is worthy of consideration.
