An early midnight rush of controversial new regulations might be on the way over the next week or so. Why now instead of the very end of the Obama presidency? Because the Congressional Review Act gives Congress 60 legislative days to strike agency regulations—but if a session of Congress ends before those 60 days are up, the clock starts over with the new Congress. So if an agency issues a rule with 59 or fewer legislative days left, the next Congress will still be able to strike down the rule, and President Obama will not be in office to veto Congress’ action.
The congressional calendar is always subject to change, so the exact 60-day deadline isn’t set in stone. According to Sam Batkins of the American Action Forum, the likely dates range from May 17 to May 23. So if an agency wants to be certain its most controversial new rules are not struck down, it will likely issue them no later than May 23. Indeed, April was a busier month than usual for the Federal Register and for new rules. Ditto the first half of May.
Of course, there are reasons to be skeptical of a midnight rush continuing through this week. If the next president is a Democrat, she would likely veto any congressional efforts to strike regulations issued by a fellow Democrat. So while this election season has been as unpredictable as any, agencies may not have anything to worry about after all.
And if Donald Trump does win the GOP nomination, the GOP’s House and Senate majorities are at risk. That would eliminate any Congressional Review Act threat. Further, if Trump wins the presidency, his lack of a clear ideology means he might also veto Congress as well, even if both chambers stay Republican.
Finally, agencies work on their own timetables. Many regulations, especially the larger, more technical ones, are planned out years in advance, and can’t be written in a rush. The rulemaking process, which requires publishing a proposed version of the rule and a public comment period, is also not well-suited for expediting new rules.
So will the recent uptick in new regulations slow down in the next week? Time will tell. Keep an eye on this space.