Bill Reining in Last-Minute Rulemaking Advances in Congress

Published May 4, 2016

A bill proposing reforms to the way federal agencies issue last-minute regulations took another step toward being voted on by Congress.

House Resolution 4612, the Midnight Rule Relief Act of 2016, was referred in April to the U.S. House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial and Antitrust Law, where it awaits a vote.

“Midnight regulations” are federal agency rules issued and approved during the lame-duck period between the beginning of a U.S. president’s final year in office and the official start date of the president’s successor.

HR 4612’s sponsor, U.S. Rep. Tim Wahlberg (R-MI), told Budget & Tax News he has firsthand knowledge of how far federal agencies are willing to go to push their agenda for more regulations.

“I chair the Subcommittee on Workforce Protections, which deals with things like the Fair Labor Standards Act, the Occupational Safety and Health Administration, Mine Safety and Health Administration, wage and hour issues, minimum wage issues, you name it,” said Wahlberg. “It becomes frustrating to see the lengths the bureaucracy is willing to go to push an agenda.”

Pen and Phone

Wahlberg says lawmakers have been concerned about President Barack Obama’s 2014 promise to use his “pen and phone” to bypass Congress and enact his agenda through executive actions.

“It’s a real concern that with a pen and a phone this president can do an awful lot with bureaucracy, especially when you get into the area of the [Environmental Protection Agency] and the Department of Labor,” Wahlberg said.

Other Regulatory Maneuvers

Clyde Wayne Crews Jr., vice president for policy at the Competitive Enterprise Institute, says midnight regulations aren’t the only kind of backdoor presidential maneuver about which lawmakers should worry.

“The thing that’s made this year interesting is that there has been a lot of regulatory debate,” Crews said. “The fact is that Obama isn’t going to be doing anything legislatively, so there’s an interest in doing things through regulation. What I’ve noticed, increasingly is it’s not that Congress passes a law, of which there are about 100 a year; it’s not that agencies pass rules, of which there are about 3,500 a year; but there are also agency guidance documents.

“These so-called guidance documents, guidance bulletins, notices, memoranda, circulars—there are all kinds of names for these things by which agencies give interpretations of statutes—they are not supposed to be binding,” said Crews. “However, agencies use these guidance documents to bind.”

Informal Rulemaking

Crews says reining in both kinds of regulations is important.

“The more focus we put on midnight regulations, which is good, we also have to put focus on agency guidance, given that the federal government is so large,” Crews said. “It can regulate with these guidance documents and not issue formal regulations at all, so the midnight regulations, as much as we want to beat that down, become less important, because they can emphasize this guidance on the side.”

Kimberly Morin ([email protected]) writes from Brentwood, New Hampshire.