During its first week in session, the 115th Congress passed two bills aimed at reining in the executive branch’s powers. If signed into law, these bills could significantly impact employers who have faced myriad rulemakings and enforcement efforts during the Obama administration.

On January 4, the House of Representatives approved the Midnight Rules Relief Act, largely along party lines. The Midnight Rules Relief Act amends the Congressional Review Act (“CRA”) and gives Congress authority to revoke regulations issued in the last 60 days of a president’s term. The CRA already allows Congress to overturn regulations individually, but the new legislation empowers Congress to rescind multiple regulations with a single vote.

The CRA was passed in 1996 as part of then-Speaker Newt Gingrich’s “Contract with America.” The CRA created a period of 60 “session days” during which Congress could use expedited procedures to overturn a regulation. During this 60-day period, Congress could pass a resolution of disapproval that would not be subject to Senate filibusters; however, the president could still veto the resolution. This rendered the CRA toothless: to overturn a regulation, the same president who approved the regulation would need to sign the resolution seeking to repeal it (or, Congress would need to override his veto).

The rare conditions where the CRA could be used played out in 2001. The Occupational Safety and Health Administration (“OSHA”) had promulgated an extremely controversial regulation requiring employers to take measures to curb ergonomic injuries in the workplace. The OSHA rule was issued in November 2000, in the waning days of the Clinton Administration. The Republican-controlled Congress voted to revoke the ergonomics regulation in March 2001, and newly-elected President George W. Bush signed the resolution of disapproval.

Some of President Obama’s “midnight” regulations restrict methane production on public lands, impose renewable fuel standards, and prohibit new offshore oil and gas leasing. According to one estimate, all of President Obama’s “midnight” regulations could cost up to $44 billion.

On January 5, the House passed the REINS Act (“Regulations from the Executive in Need of Scrutiny”), which creates a congressional veto over certain executive actions. This proposal attempts to discipline federal regulatory agencies and enhance congressional accountability for federal regulations. Its central provision provides that new major rules cannot take effect unless Congress passes a joint resolution approving the regulation within 70 session or legislative days of the rule’s submission to Congress. “Major rules” are defined as those regulations that are anticipated by the White House Office of Management and Budget to impose annual economic costs in excess of $100 million or otherwise have significant or anticompetitive effects. Joint resolutions of approval, once passed by both houses of Congress, are then forwarded to the president for his signature (or veto). During the presidential campaign, President-Elect Donald Trump pledged to sign the bill if it reached his desk.

A hallmark of modern governance is the rise of executive lawmaking through administrative agencies. Not only has Congress yielded its role as the shaper of legislative policy, but inertia in Congress prevents its effective supervision of agency action.  The REINS Act reverses the effect of that inertia—and might prod Congress into assuming a more active role in major policy decisions.

While the REINS Act provides a means of curbing excessive or unwarranted regulations, it is probably not a major impediment to necessary regulatory measures that enjoy broad public support. But even if agencies are overzealous, the REINS Act may not curtail the federal regulations much at all. The legislation would apply only to new major rules, leaving existing regulations untouched, and would restrict regulatory and deregulatory initiatives alike. Perhaps more significantly, members of Congress might not be so quick to condemn regulatory proposals if they are forced to back up their criticisms with an on-the-record vote.

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