How to push back on the Bush Administration's "midnight regs"

A friend of mine emails me a post on Obsidian Wings from shortly after the election which is a must-read for anyone concerned about the last-minute regulations that are being pushed through government agencies by the Bush administration:

Among the regulations being monitored are a proposal to end a ban on carrying loaded guns in national parks, a plan that could make it harder for women to get federally funded reproductive health care, and a Labor Department proposal to change the way regulators assess risk for jobs, especially those that expose workers to chemicals.

These regulations can be made without the consent of Congress as part of the powers delegated to the various government agencies controlled by the executive branch. Once in place, it can be very laborious to remove them- involving extended periods of public "notice and comment" where industry lobbyists have the opportunity to drag out the proceedings.

Publius on Obsidian Wings brings up a law that I hadn't previously heard of called the Congressional Review Act of 1996 (CRA), that would allow Congress and Obama to nip these regulations in the bud, without being subject to filibuster in the Senate:

Long story short – the CRA potentially helps Obama repeal last-minute regulations in two ways: (1) it extends the “effective date” of Bush’s “major” regulations; and (2) it gives Congress a limited window to veto any newly-enacted regulation, regardless of whether it’s already become effective.

To back up, the CRA requires that agencies submit copies of new regulations to Congress before they can go into effect. With respect to #1 above, the CRA requires that “major” rules cannot go into effect until 60 days after this submission. As Professor Shane notes, if “Congress adjourns for a new session within 60 days,” then the review period restarts on the 15th day of the next session. In short, it’s as if the rules had been submitted to Congress for the first time around Day 1 of the Obama presidency. That means any last-minute “major” rules won’t be “effective” when Obama takes office. Thus, he can postpone (and presumably kill) them immediately.

However, #2 is arguably more important because it covers rules that have already gone into effect. For any new rule (major or not), Congress has a limited 60-day window to repeal it via joint resolution (which must be signed by the president). Here too, if Congress adjourns within 60 days of receiving the rule submission, the whole thing starts again on Day 15 of the next congressional session.

In short, Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours. I presume the legal eagles working for Obama know all this – but it can’t hurt to remind them.Long story short – the CRA potentially helps Obama repeal last-minute regulations in two ways: (1) it extends the “effective date” of Bush’s “major” regulations; and (2) it gives Congress a limited window to veto any newly-enacted regulation, regardless of whether it’s already become effective. I’ll expand on both below.

To back up, the CRA requires that agencies submit copies of new regulations to Congress before they can go into effect. With respect to #1 above, the CRA requires that “major” rules cannot go into effect until 60 days after this submission. As Professor Shane notes, if “Congress adjourns for a new session within 60 days,” then the review period restarts on the 15th day of the next session. In short, it’s as if the rules had been submitted to Congress for the first time around Day 1 of the Obama presidency. That means any last-minute “major” rules won’t be “effective” when Obama takes office. Thus, he can postpone (and presumably kill) them immediately.

However, #2 is arguably more important because it covers rules that have already gone into effect. For any new rule (major or not), Congress has a limited 60-day window to repeal it via joint resolution (which must be signed by the president). Here too, if Congress adjourns within 60 days of receiving the rule submission, the whole thing starts again on Day 15 of the next congressional session.

In short, Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours.