Democratic Lawmakers Seek to Increase Oversight of ‘Midnight’ Regulations

Top House Democrats introduced a bill on Tuesday that would bolster congressional oversight of last minute or “midnight regulations” by an outgoing presidential administration. 

The legislation from four members of the House Oversight and Reform Committee comes as the presidential transition is underway and the Trump administration is rushing through many regulation changes, after four years of massive deregulation. Rep. Gerry Connolly, D-Va., chairman of the Government Operations Subcommittee, first mentioned the measure during a hearing last week to examine how transition laws can be improved. The General Services Administration waited 16 days after the news outlets called the presidential race for Joe Biden to ascertain him as the apparent winner and allow the formal changeover to begin. Meanwhile, President Trump has yet to concede. 

“Outgoing administrations often saddle incoming administrations with last-minute regulations that did not undergo thorough review and analysis or failed to collect and heed stakeholder input,” said a summary of the bill. “If a midnight rule is finalized, a new administration is forced to work through the time-consuming rulemaking process to change or repeal the rule, potentially diverting critical resources at a substantial cost.” 

If enacted, the bill would require the Government Accountability Office to submit a report to the House Oversight and the Reform Committee and the Senate Homeland Security and Governmental Affairs Committee about the administration’s major rule changes during its lame duck session that could be subject to the Congressional Review Act, which allows a new administration to undo any regulations done in the last 60 legislative days of the prior Congress.

The legislation would also require GAO to report to Congress within a year of the new administration about the “size, scope and effect” of the last minute regulations, whether they complied with the various laws on regulations and how significant they are compared to rules made during the rest of the administration. The watchdog Citizens for Responsibility and Ethics in Washington and nonprofit Partnership for Public Service endorsed the proposed bill. 

The lawmakers also noted that they asked GAO last week to provide a list of major rule changes published in the Federal Register during this Congress and early in the next one that could possibly be subject to the Congressional Review Act. President-elect Biden’s success in using the act will be predicated on the two runoff elections in Georgia on January 5 that will determine which party controls the Senate. 

A Republican oversight committee spokesperson told Government Executive the legislation “is a half-hearted attempt to curb midnight rules.” A proposal from Republicans in January 2017 “had actual teeth in it to prevent government overreach,” the spokesperson said. The then-Republican controlled House passed it, but the full Senate never voted on it. 

 “When Republicans tried to enable Congress to more quickly and easily disapprove of overreaching midnight rules, Democrats actively opposed it,” said the spokesperson. “This bill reflects the fact Democrats just want to continue launching partisan attacks against President Trump rather than find solutions. President Trump has come through on his promises to drain the swamp, cut red tape and help the American people.”

The rush to push out regulations during a lame duck session is not unusual; however, “nothing about this administration has been typical or normal,” Stuart Shapiro, associate dean of faculty at the Bloustein School of Planning and Public Policy at Rutgers University, previously told Government Executive. He said he expected there to be an even greater rush than during precious lame duck sessions and an “even greater lack of analysis and lack of responsiveness,” as the Trump administration has already “been glaringly weak in its analysis in its regulations and its following of the Administrative Procedure Act.” 

One example of a “midnight” regulation is that last week the Labor Department released a finalized rule that clarifies religious protections for federal contractors, which many critics argue will allow for discrimination. Another is that the Health and Human Services Department is seeking feedback on how it can make permanent or modify any of the actions it took to further Trump’s strategy to use deregulation to address the economic recession created by the novel coronavirus pandemic. The administration is also putting forth many changes to “loosen environmental and consumer protections,” ProPublica reported. 

“The recent actions of the Trump administration have shown us firsthand how outgoing administrations can take advantage of midnight rulemaking for partisan, political gain,” said Connolly and Reps. Carolyn Maloney, D-N.Y., committee chairwoman; Raja Krishnamoorthi, D-Ill., chairman of the Economic and Consumer Policy Subcommittee; and Jackie Speier, D-Calif., in a statement on Tuesday afternoon. “Presidential transitions demand rigorous oversight, and midnight rulemaking is no exception.”

Cass Sunstein, administrator of the Office of Regulatory and Information Affairs during President Obama’s first term, wrote in Bloomberg on Monday that Biden should take a more nuanced approach to Trump’s “midnight” regulations, especially as they relate to cost-benefit analysis.  

“Some of the last-minute regulations are genuinely terrible, such as new restrictions on granting asylum to people threatened with gang or gender violence,” he wrote. “But others are more complicated, in the sense that they are likely to produce disparate reactions among Biden’s supporters — and potentially reveal significant fissures among progressives.”