How Trump and GOP might tackle Obama’s ‘midnight regulations’

Transitions are busy times in politics. Nowhere is this more true than in the world of regulation. The Obama administration issued many regulations in the time after President Trump won the presidency, prompting much handwringing among opponents of regulation.

Meanwhile, the House of Representatives has been busy passing bills to make it harder to regulate in the hope that Trump will sign them.

Rhetoric is heated on both of these efforts. Anti-regulation groups decry the costs of the “midnight regulations.” Supporters of regulation similarly paint a picture of destruction that would occur if any of the regulatory reform bills pass.

Both the midnight regulations and the early morning regulatory reforms are indeed highly political efforts by a Democratic president and a Republican House trying to put forward their policy preferences.

But both efforts face some obstacles before they go into effect.

{mosads}Many of the most recent Obama administration regulations will not go into effect until after Jan. 20, because law requires at least 30 days between publication and when the rule is effective. This gives the Trump administration the ability to slow these regulations down.

Like all presidents before him, I would expect Trump to delay the effective date of the more controversial Obama administration regulations. Once the effective date is delayed, Trump can push agencies toward rescinding or modifying these regulations before they ever take effect.

Other regulations that do take effect by Jan. 20, but were issued after June 2016, will be subject to the Congressional Review Act (CRA) which allows Congress to overturn recent regulations without overcoming a filibuster in the Senate.

But Congress’s ability to use the CRA is limited by the facts that they only have 60 session days to use it and they can only consider one regulation at a time. This means that most of the regulations promulgated by the Obama administration before the last 30 days will stand (although a few big ones are likely to be overturned by Congress using the CRA).

The first of the regulatory reform bills passed by the House was intended to make it easier to overturn more regulations with the CRA. Dubbed the Midnight Rules Relief Act, it allows Congress to overturn more than one rule at a time using the CRA. This bill is likely to be filibustered in the Senate and unlikely to eventually pass.

The most far-reaching regulatory reform bill passed by the House this month is the Regulations by the Executive in Need of Scrutiny Act (REINS). This bill would require congressional approval for any major regulation before it went into effect. It also faces an uphill climb in the Senate.

If the Senate does pass it, it will be very interesting to see if Trump signs a bill that would curb his power, including his power to undo Obama administration regulations.

The regulatory reform bill that has passed the House and has the greatest chance of becoming law in some form is the Regulatory Accountability Act. This statute would add numerous additional steps to the regulatory process and therefore make it more difficult for agencies to issue regulations. While agencies have a history of finding a way around these types of requirements, this bill was written specifically with those experiences in mind. The fate of this bill in the Senate is uncertain.

Many key decisions are being made on both sides of Pennsylvania Avenue. The long-term impacts of some of these decisions will be muted by countervailing political forces (midnight rules overturned, early morning regulatory reforms filibustered or weakened in the Senate). But others will be with us for the long day ahead.

Stuart Shapiro is a professor and director of the Public Policy Program at the Bloustein School at Rutgers University and a member of the Scholars Strategy Network. Follow him on Twitter @shapiro_stuart.

The views expressed by contributors are their own and not the views of The Hill.