[House Report 118-862]
[From the U.S. Government Publishing Office]
118th Congress} { Rept. 118-862
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
MIDNIGHT RULES RELIEF ACT
_______
December 11, 2024.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Jordan, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 115]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 115) to amend chapter 8 of title 5, United States
Code, to provide for en bloc consideration in resolutions of
disapproval for ``midnight rules'', and for other purposes,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 7
New Budget Authority and Tax Expenditures........................ 7
Congressional Budget Office Cost Estimate........................ 7
Committee Estimate of Budgetary Effects.......................... 7
Duplication of Federal Programs.................................. 7
Performance Goals and Objectives................................. 7
Advisory on Earmarks............................................. 8
Federal Mandates Statement....................................... 8
Advisory Committee Statement..................................... 8
Applicability to Legislative Branch.............................. 8
Correspondence................................................... 9
Section-by-Section Analysis...................................... 11
Changes in Existing Law Made by the Bill, as Reported............ 11
Dissenting Views................................................. 16
The amendment is as follows:
Strike all that follows after the enacting clause and insert
the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Midnight Rules Relief Act''.
SEC. 2. EN BLOC CONSIDERATION OF RESOLUTIONS OF DISAPPROVAL PERTAINING
TO ``MIDNIGHT RULES''.
(a) In General.--Section 801(d) of title 5, United States Code, is
amended by adding at the end the following:
``(4) In applying section 802 to rules described under paragraph (1),
a joint resolution of disapproval may contain one or more such rules if
the report under subsection (a)(1)(A) for each such rule was submitted
during the final year of a President's term.''.
(b) Text of Resolving Clause.--Section 802(a) of title 5, United
States Code, is amended--
(1) by inserting after ``resolving clause of which is'' the
following: ``(except as otherwise provided in this
subsection)''; and
(2) by adding at the end the following: ``In the case of a
joint resolution under section 801(d)(4), the matter after the
resolving clause of such resolution shall be as follows: `That
Congress disapproves the following rules: the rule submitted by
the __ relating to __; and the rule submitted by the __
relating to __. Such rules shall have no force or effect.' (The
blank spaces being appropriately filled in and additional
clauses describing additional rules to be included as
necessary).''.
Purpose and Summary
H.R. 115, the Midnight Rules Relief Act, introduced by Rep.
Andy Biggs (R-AZ) amends the Congressional Review Act to allow
Congress to consider a joint resolution disapproving of more
than one regulation issued during the final year of a
President's term in office.
Background and Need for the Legislation
The Constitution separates the powers of the federal
government by vesting the legislative power in Congress, the
executive power in the President, and the judicial power in the
courts.\1\ The Framers established this structural separation
to provide ``security against a gradual concentration of the
several powers in the same department'' by ``giving to those
who administer each department the necessary constitutional
means and personal motives to resist encroachments of the
others.''\2\ In other words--those of James Madison--this
separation of powers works such that ``[a]mbition [is] made to
counteract ambition.''\3\
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\1\U.S. Const. art. I Sec. 1, art. II Sec. 1, art. III Sec. 1; see
Saikrishna B. Prakash, A Note on the Separation of Powers, The Heritage
Guide to the Constitution (2d ed. 2014).
\2\The Federalist No. 51 (James Madison).
\3\Id.
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In addition, federal legislation requires the approval of
the House of Representatives, the Senate, and the President.\4\
These elected officials are accountable to the American people,
who may petition their representatives to support or oppose
legislation, and vote them out of office if they pass unpopular
or unwise laws.\5\ Under the Constitution, ``[n]o law or
resolution can . . . be passed without the concurrence, first,
of a majority of the people, and then, of a majority of the
States.''\6\ The Framers intended this process to provide an
``[i]mpediment . . . against improper acts of legislation.''\7\
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\4\U.S. Const. art. I Sec. 7.
\5\See U.S. Const. art. I Sec. 2, art. II Sec. 1, amends. 1& 17.
\6\The Federalist No. 62 (Alexander Hamilton or James Madison).
\7\Id.
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Contrary to this constitutional structure, the
administrative state has consolidated the powers of the federal
government in itself. Federal agencies exercise legislative
power by issuing rules with the force of law, executive power
by enforcing those rules, and judicial power by adjudicating
disputes under them.\8\ As one witness testified before the
Judiciary Committee's Subcommittee on the Administrative State,
Regulatory Reform, and Antitrust, in ``the modern
administrative state . . . the executive branch regularly runs
the risk of encroaching on the authority of the legislative
branch.''\9\ Another hearing witness framed the matter more
starkly:
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\8\Michael Uhlmann, A Note on Administrative Agencies, The Heritage
Guide to the Constitution (2d ed. 2014).
\9\Reining in the Administrative State: Reclaiming Congress's
Legislative Power: Hearing Before the Subcomm. on the Administrative
State, Regulatory Reform, and Antitrust of the H. Comm. on the
Judiciary, 118th Cong. 1 (2023) (statement of Allyson N. Ho, Partner,
Gibson, Dunn & Crutcher LLP).
If your knowledge of separation of powers is based on
reading the Constitution or watching Schoolhouse Rock
classics like ``I'm Just a Bill'' and ``Three-Ring
Government,'' you could be forgiven for believing that
Congress makes laws and the President executes those
laws by enforcement and education. . . . [T]he present
reality is entirely different. . . . [F]ederal agencies
regularly make new laws to fill gaps left by the
legislature, intentionally or unintentionally. And at
times, regulatory agencies even act to make new laws
despite a lack of any Congressional authority.\10\
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\10\Reining in the Administrative State: Reclaiming Congress's
Legislative Power: Hearing Before the Subcomm. on the Administrative
State, Regulatory Reform, and Antitrust of the H. Comm. on the
Judiciary, 118th Cong. 2 (2023) (statement of Jonathan A. Wolfson,
Chief Legal Officer and Policy Director, Cicero Institute).
Congress enacted the Congressional Review Act (CRA) in 1996
to help ``reclaim[] for Congress some of its policymaking
authority'' and ``give[] the public the opportunity to call the
attention of politically accountable, elected officials to
concerns about new agency rules.''\11\ The CRA requires
agencies to submit rules to Congress and the Government
Accountability Office (GAO) before they can take effect, and
provides an expedited process for Congress to disapprove a rule
by passing a joint resolution.\12\ In effect, the CRA gives
Congress a legislative veto mechanism over agency rulemaking
that satisfies the Constitution's bicameralism and presentment
requirements.\13\ As then-President Bill Clinton explained in
signing the CRA, ``th[e] legislation increases congressional
accountability for regulations'' and ``provid[es] expedited
procedures for the Congress to review those regulations.''\14\
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\11\142 Cong. Rec. S3683-01, 683-84 (daily ed. Apr. 18, 1996)
(statement of Sens. Nickles, Reid, and Stevens); see 5 U.S.C.
Sec. Sec. 801-808.
\12\See Maeve P. Carey & Christopher M. Davis, Congressional
Research Service, The Congressional Review Act (CRA): Frequently Asked
Questions 1 (Nov. 12, 2021); Christopher M. Davis, Congressional
Research Service, The 118th Congress and the Congressional Review Act
``Lookback'' Mechanism 1 (Dec. 1, 2022).
\13\See Carey & Davis, supra note 12, at 23 n.128.
\14\Statement on Signing the Contract With America Advancement Act
of 1996, 1 Pub. Papers 525 (Mar. 29, 1996).
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Congress's power to disapprove agency rules under the CRA
provides a check on federal administrative power. Currently,
however, the CRA requires Congress to introduce separate joint
resolutions for each agency rule it seeks to disapprove.\15\ By
forcing Congress to consider agency rules one at a time, the
CRA slows Congress's ability to oversee agency action. This
inefficiency is especially pronounced in the final year of a
President's term. In so-called ``midnight rulemaking,''
executive agencies historically have issued substantially more
regulations in the President's final year of his term.\16\
During the Clinton, Bush, and Obama administrations, agencies
issued about 2.5 times more regulations during the last year of
each President's term.\17\
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\15\Id.
\16\See Federal Rulemaking: Trends at the End of President's Terms
Remained Generally Consistent Across Administrations, Gov't
Accountability Office (Jan. 31, 2023).
\17\See Id. at 14.
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The Midnight Rules Relief Act addresses this inefficiency.
The bill would allow Congress to consider multiple agency rules
at once if the rules were issued in the final year of the
President's term.\18\ The bill does not change Congress's
review of rules in the first three years of the President's
term and in no way alters the substantive requirements for
Congress to disapprove agency rules. Rather, the bill allows
Congress to more efficiently review rules issued during the
``midnight hours'' of the President's term by reviewing more
than one rule at a time.\19\ This change would allow Congress
to properly oversee agency rulemaking in the period when a
disproportionate amount of rulemaking occurs.
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\18\Midnight Rules Relief Act, H.R. 115 (2023).
\19\See Robert Farley, Cherry-Picking on Regulation, FactCheck.org
(Sep. 22, 2011) citing Susan E. Dudley, Administrative Law &
Regulation: Regulatory Activity in the Bush Administration at the
Stroke of Midnight, Federalist Society (2009).
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Hearings
For the purposes of clause 3(c)(6)(A) of House rule XIII,
the following hearing was used to develop H.R. 115: ``Reining
in the Administrative State: Reclaiming Congress's Legislative
Power,'' a hearing held on March 10, 2023, before the
Subcommittee on the Administrative State, Regulatory Reform,
and Antitrust. The Committee heard testimony from the following
witnesses:
Allyson N. Ho, Partner and Co-Chair of
Appellate and Constitutional Law, Gibson, Dunn &
Crutcher LLP;
Jonathan Wolfson, Chief Legal Officer and
Policy Director, Cicero Institute;
Ryan Cleckner, Co-Founder, Gun University
LLC and Owner, Law office of Ryan M. Cleckner; and
Emily Hammond, Professor, George Washington
University Law School.
The hearing addressed the growth of the administrative state
and how it has aggrandized legislative power.
Committee Consideration
On September 19, 2024, the Committee met in open session
and ordered the bill, H.R. 115, favorably reported with an
amendment in the nature of a substitute, by a vote of 14-10, a
quorum being present.
Committee Votes
In compliance with clause 3(b) of House rule XIII, the
Committee states that the following roll call votes were taken
during consideration of H.R. 115:
1. Vote on favorably reporting H.R. 115, as amended--passed
14-10.
Committee Oversight Findings
In compliance with clause 3(c)(1) of House rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of rule X of the Rules of the House of Representatives, are
incorporated in the descriptive portions of this report.
New Budget Authority and Tax Expenditures
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to the requirements of clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of the Congressional Budget Office. The Committee has
requested but not received from the Director of the
Congressional Budget Office a statement as to whether this bill
contains any new budget authority, spending authority, credit
authority, or an increase or decrease in revenues or tax
expenditures. The Chairman of the Committee shall cause such
estimate and statement to be printed in the Congressional
Record upon its receipt by the Committee.
Congressional Budget Office Cost Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives, a cost
estimate provided by the Congressional Budget Office pursuant
to section 402 of the Congressional Budget Act of 1974 was not
made available to the Committee in time for the filing of this
report. The Chairman of the Committee shall cause such estimate
to be printed in the Congressional Record upon its receipt by
the Committee.
Committee Estimate of Budgetary Effects
With respect to the requirements of clause 3(d)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House rule XIII, no provision
of H.R. 115 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
House rule XIII, H.R. 115 would amend the Congressional Review
Act to allow Congress to consider a joint resolution
disapproving of more than one regulation issued during the
final year of a President's term in office.
Advisory on Earmarks
In accordance with clause 9 of House rule XXI, H.R. 115
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clauses
9(d), 9(e), or 9(f) of House rule XXI.
Federal Mandates Statement
An estimate of federal mandates prepared by the Director of
the Congressional Budget office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Pub. L. 104-
1).
Section-by-Section Analysis
Section 1. Short title
The ``Midnight Rules Relief Act.''
Section 2. En Bloc consideration of resolutions of disapproval
pertaining to ``Midnight Rules''
This section amends 5 U.S.C. Sec. 801(d) to allow a joint
resolution of disapproval against one or more rules if the
report for each such rule under subsection (a)(1)(A) was
submitted during the President's final year in office.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 8--CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
* * * * * * *
Sec. 801. Congressional review
(a)(1)(A) Before a rule can take effect, the Federal agency
promulgating such rule shall submit to each House of the
Congress and to the Comptroller General a report containing--
(i) a copy of the rule;
(ii) a concise general statement relating to the
rule, including whether it is a major rule; and
(iii) the proposed effective date of the rule.
(B) On the date of the submission of the report under
subparagraph (A), the Federal agency promulgating the rule
shall submit to the Comptroller General and make available to
each House of Congress--
(i) a complete copy of the cost-benefit analysis of
the rule, if any;
(ii) the agency's actions relevant to sections 603,
604, 605, 607, and 609;
(iii) the agency's actions relevant to sections 202,
203, 204, and 205 of the Unfunded Mandates Reform Act
of 1995; and
(iv) any other relevant information or requirements
under any other Act and any relevant Executive orders.
(C) Upon receipt of a report submitted under subparagraph
(A), each House shall provide copies of the report to the
chairman and ranking member of each standing committee with
jurisdiction under the rules of the House of Representatives or
the Senate to report a bill to amend the provision of law under
which the rule is issued.
(D) For any rule submitted under subparagraph (A), if the
Federal agency promulgating the rule, in whole or in part,
revokes, suspends, replaces, amends, or otherwise makes the
rule ineffective, or the rule is made ineffective for any other
reason, the Federal agency shall submit to the Comptroller
General a report containing--
(i) the title of the rule;
(ii) the Federal Register citation for the rule, if
any;
(iii) the date on which rule was submitted to the
Comptroller General; and
(iv) a description of the provisions of the rule that
are being revoked, suspended, replaced, amended, or
otherwise made ineffective.
(2)(A) The Comptroller General shall provide a report on each
major rule to the committees of jurisdiction in each House of
the Congress by the end of 15 calendar days after the
submission or publication date as provided in section
802(b)(2). The report of the Comptroller General shall include
an assessment of the agency's compliance with procedural steps
required by paragraph (1)(B), and shall in addition include an
assessment of the agency's compliance with such requirements of
the Administrative Pay-As-You-Go Act of 2023 as may be
applicable.
(B) Federal agencies shall cooperate with the Comptroller
General by providing information relevant to the Comptroller
General's report under subparagraph (A).
(3) A major rule relating to a report submitted under
paragraph (1) shall take effect on the latest of--
(A) the later of the date occurring 60 days after the
date on which--
(i) the Congress receives the report
submitted under paragraph (1); or
(ii) the rule is published in the Federal
Register, if so published;
(B) if the Congress passes a joint resolution of
disapproval described in section 802 relating to the
rule, and the President signs a veto of such
resolution, the earlier date--
(i) on which either House of Congress votes
and fails to override the veto of the
President; or
(ii) occurring 30 session days after the date
on which the Congress received the veto and
objections of the President; or
(C) the date the rule would have otherwise taken
effect, if not for this section (unless a joint
resolution of disapproval under section 802 is
enacted).
(4) Except for a major rule, a rule shall take effect as
otherwise provided by law after submission to Congress under
paragraph (1).
(5) Notwithstanding paragraph (3), the effective date of a
rule shall not be delayed by operation of this chapter beyond
the date on which either House of Congress votes to reject a
joint resolution of disapproval under section 802.
(b)(1) A rule shall not take effect (or continue), if the
Congress enacts a joint resolution of disapproval, described
under section 802, of the rule.
(2) A rule that does not take effect (or does not continue)
under paragraph (1) may not be reissued in substantially the
same form, and a new rule that is substantially the same as
such a rule may not be issued, unless the reissued or new rule
is specifically authorized by a law enacted after the date of
the joint resolution disapproving the original rule.
(c)(1) Notwithstanding any other provision of this section
(except subject to paragraph (3)), a rule that would not take
effect by reason of subsection (a)(3) may take effect, if the
President makes a determination under paragraph (2) and submits
written notice of such determination to the Congress.
(2) Paragraph (1) applies to a determination made by the
President by Executive order that the rule should take effect
because such rule is--
(A) necessary because of an imminent threat to health
or safety or other emergency;
(B) necessary for the enforcement of criminal laws;
(C) necessary for national security; or
(D) issued pursuant to any statute implementing an
international trade agreement.
(3) An exercise by the President of the authority under this
subsection shall have no effect on the procedures under section
802 or the effect of a joint resolution of disapproval under
this section.
(d)(1) In addition to the opportunity for review otherwise
provided under this chapter, in the case of any rule for which
a report was submitted in accordance with subsection (a)(1)(A)
during the period beginning on the date occurring--
(A) in the case of the Senate, 60 session days, or
(B) in the case of the House of Representatives, 60
legislative days,
before the date the Congress adjourns a session of Congress
through the date on which the same or succeeding Congress first
convenes its next session, section 802 shall apply to such rule
in the succeeding session of Congress.
(2)(A) In applying section 802 for purposes of such
additional review, a rule described under paragraph (1) shall
be treated as though--
(i) such rule were published in the Federal Register
(as a rule that shall take effect) on--
(I) in the case of the Senate, the 15th
session day, or
(II) in the case of the House of
Representatives, the 15th legislative day,
after the succeeding session of Congress first convenes; and
(ii) a report on such rule were submitted to Congress
under subsection (a)(1) on such date.
(B) Nothing in this paragraph shall be construed to affect
the requirement under subsection (a)(1) that a report shall be
submitted to Congress before a rule can take effect.
(3) A rule described under paragraph (1) shall take effect as
otherwise provided by law (including other subsections of this
section).
(4) In applying section 802 to rules described under
paragraph (1), a joint resolution of disapproval may contain
one or more such rules if the report under subsection (a)(1)(A)
for each such rule was submitted during the final year of a
President's term.
(e)(1) For purposes of this subsection, section 802 shall
also apply to any major rule promulgated between March 1, 1996,
and the date of the enactment of this chapter.
(2) In applying section 802 for purposes of Congressional
review, a rule described under paragraph (1) shall be treated
as though--
(A) such rule were published in the Federal Register
on the date of enactment of this chapter; and
(B) a report on such rule were submitted to Congress
under subsection (a)(1) on such date.
(3) The effectiveness of a rule described under paragraph (1)
shall be as otherwise provided by law, unless the rule is made
of no force or effect under section 802.
(f) Any rule that takes effect and later is made of no force
or effect by enactment of a joint resolution under section 802
shall be treated as though such rule had never taken effect.
(g) If the Congress does not enact a joint resolution of
disapproval under section 802 respecting a rule, no court or
agency may infer any intent of the Congress from any action or
inaction of the Congress with regard to such rule, related
statute, or joint resolution of disapproval.
Sec. 802. Congressional disapproval procedure
(a) For purposes of this section, the term ``joint
resolution'' means only a joint resolution introduced in the
period beginning on the date on which the report referred to in
section 801(a)(1)(A) is received by Congress and ending 60 days
thereafter (excluding days either House of Congress is
adjourned for more than 3 days during a session of Congress),
the matter after the resolving clause of which is (except as
otherwise provided in this subsection) as follows: ``That
Congress disapproves the rule submitted by the __ relating to
__, and such rule shall have no force or effect.'' (The blank
spaces being appropriately filled in). In the case of a joint
resolution under section 801(d)(4), the matter after the
resolving clause of such resolution shall be as follows: ``That
Congress disapproves the following rules: the rule submitted by
the __ relating to __; and the rule submitted by the __
relating to __. Such rules shall have no force or effect.''
(The blank spaces being appropriately filled in and additional
clauses describing additional rules to be included as
necessary).
(b)(1) A joint resolution described in subsection (a) shall
be referred to the committees in each House of Congress with
jurisdiction.
(2) For purposes of this section, the term ``submission or
publication date'' means the later of the date on which--
(A) the Congress receives the report submitted under
section 801(a)(1); or
(B) the rule is published in the Federal Register, if
so published.
(c) In the Senate, if the committee to which is referred a
joint resolution described in subsection (a) has not reported
such joint resolution (or an identical joint resolution) at the
end of 20 calendar days after the submission or publication
date defined under subsection (b)(2), such committee may be
discharged from further consideration of such joint resolution
upon a petition supported in writing by 30 Members of the
Senate, and such joint resolution shall be placed on the
calendar.
(d)(1) In the Senate, when the committee to which a joint
resolution is referred has reported, or when a committee is
discharged (under subsection (c)) from further consideration of
a joint resolution described in subsection (a), it is at any
time thereafter in order (even though a previous motion to the
same effect has been disagreed to) for a motion to proceed to
the consideration of the joint resolution, and all points of
order against the joint resolution (and against consideration
of the joint resolution) are waived. The motion is not subject
to amendment, or to a motion to postpone, or to a motion to
proceed to the consideration of other business. A motion to
reconsider the vote by which the motion is agreed to or
disagreed to shall not be in order. If a motion to proceed to
the consideration of the joint resolution is agreed to, the
joint resolution shall remain the unfinished business of the
Senate until disposed of.
(2) In the Senate, debate on the joint resolution, and on all
debatable motions and appeals in connection therewith, shall be
limited to not more than 10 hours, which shall be divided
equally between those favoring and those opposing the joint
resolution. A motion further to limit debate is in order and
not debatable. An amendment to, or a motion to postpone, or a
motion to proceed to the consideration of other business, or a
motion to recommit the joint resolution is not in order.
(3) In the Senate, immediately following the conclusion of
the debate on a joint resolution described in subsection (a),
and a single quorum call at the conclusion of the debate if
requested in accordance with the rules of the Senate, the vote
on final passage of the joint resolution shall occur.
(4) Appeals from the decisions of the Chair relating to the
application of the rules of the Senate to the procedure
relating to a joint resolution described in subsection (a)
shall be decided without debate.
(e) In the Senate the procedure specified in subsection (c)
or (d) shall not apply to the consideration of a joint
resolution respecting a rule--
(1) after the expiration of the 60 session days
beginning with the applicable submission or publication
date, or
(2) if the report under section 801(a)(1)(A) was
submitted during the period referred to in section
801(d)(1), after the expiration of the 60 session days
beginning on the 15th session day after the succeeding
session of Congress first convenes.
(f) If, before the passage by one House of a joint resolution
of that House described in subsection (a), that House receives
from the other House a joint resolution described in subsection
(a), then the following procedures shall apply:
(1) The joint resolution of the other House shall not
be referred to a committee.
(2) With respect to a joint resolution described in
subsection (a) of the House receiving the joint
resolution--
(A) the procedure in that House shall be the
same as if no joint resolution had been
received from the other House; but
(B) the vote on final passage shall be on the
joint resolution of the other House.
(g) This section is enacted by Congress--
(1) as an exercise of the rulemaking power of the
Senate and House of Representatives, respectively, and
as such it is deemed a part of the rules of each House,
respectively, but applicable only with respect to the
procedure to be followed in that House in the case of a
joint resolution described in subsection (a), and it
supersedes other rules only to the extent that it is
inconsistent with such rules; and
(2) with full recognition of the constitutional right
of either House to change the rules (so far as relating
to the procedure of that House) at any time, in the
same manner, and to the same extent as in the case of
any other rule of that House.
* * * * * * *
DISSENTING VIEWS
I. Introduction
H.R. 115, the ``Midnight Rules Relief Act'' would enable a
Republican-controlled 119th Congress to use an expanded
Congressional Review Act (``CRA'') to nullify every rule issued
by public agencies under the Biden Administration since
(approximately) August 2, 2024, with a single vote. This bill
would therefore allow the reversal of numerous life and cost
saving rules at once. Further, public agencies would be
prevented from ever promulgating ``substantially similar''
rules again. This Congressional repeal of rules is
unreviewable, has blunt effect and is vaguely defined--thus
tying agencies' hands forever after. Under the CRA's special
procedures, a vote under H.R. 115 would also be exempt from
filibuster in the Senate.
This bill is yet another effort by Republicans to prevent
public agencies and tireless civil servants from protecting
Americans from scammers, polluters, monopolies, and corporate
profiteers, at the cost of our health, safety, and environment.
H.R. 115 is intended to hamstring the government's fundamental
ability to protect people. This bill has the dubious
distinction of being specifically advocated for in Project
2025, the blueprint for the incoming Trump Administration.\1\
Recall that for Project 2025, it is not enough to thoughtfully
pare back the administrative state. It seeks to use a machete.
This is consistent with Project 2025's admonition that
``dismantling'' the administrative state ``must [be] a top
priority for the next conservative President.''\2\
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\1\See Heritage Foundation, Project 2025 Presidential Transitional
Project, Mandate for Leadership: The Conservative Promise (2023) at 50.
\2\Id. at 7.
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H.R. 115 embodies the same unbridled animosity to the
necessary and expert work of our public agencies. Members of
Congress of both parties have expressed concern in the past
about ``midnight rulemaking,'' the act of an outgoing
presidential administration issuing a flurry of rules that will
bind its successor. However, the problem is relatively narrow.
It tends to occur in the closing days of an administration
(i.e., during the presidential transition) and there are
already ample means to address such rules. This bill will be
used not solely against midnight rules, but also against the
broad range of strong rules public agencies crafted to protect
consumers, workers, and the public from corporations and the
people who break the law.
An identical version of this legislation, introduced as
H.R. 21 by Rep. Darrell Issa (R-CA), passed the House in
January 2017, on a nearly party-line vote.\3\ The bill bypassed
Committee consideration that year, but the previous year, the
Committee marked up an identical bill. In the dissenting views
included in the Committee Report on the bill, Democrats argued
that the bill would jeopardize public health and safety and
allow special interests to threaten critical regulations.\4\
Democrats also argued that the en bloc rejection of midnight
rules amounted to a radical solution to a problem that had
failed to materialize.\5\ Those criticisms remain salient
today.
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\3\115th Cong., 1st Sess., Roll Call Vote No. 8 (Jan. 4, 2017).
\4\H. Rept. 114-782, H.R. 5982, Midnight Rules Relief Act of 2016
(Sept. 21, 2016) at 25-26.
\5\Id. at 27.
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II. Concerns
H.R. 115 expands the Congressional Review Act to allow for
multiple rules to be rolled back with a single vote. The
Midnight Rules Relief Act enables a narrow majority of one
party to undo years of agency work and to bar these agencies
from ever passing a ``substantially similar'' rule in the
future, thus undermining the statutory mission Congress
entrusted them with. The bill exacerbates key issues with the
Congressional Review Act, including its broad effect and vague
time scope.
A. BACKGROUND ON THE CONGRESSIONAL REVIEW ACT
Congress has numerous means at its disposal to effectively
check agency behavior. These include placing limits on its
delegations of authority, the appropriations process, and
oversight activity. Congress also can roll back agency rules
under the Congressional Review Act (``CRA''). The CRA was
enacted in 1996 as part of then-Speaker Newt Gingrich's
Contract with America.\6\
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\6\Ben Geman, Top Republican Eyes Congressional Review Act
Challenge to EPA Rules, The Hill (Jan. 2, 2011), http://thehill.com/
blogs/e2-wire/677-e2-wire/135595-upton-eyes-
congressional-review-act-challenge-to-epa.
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The CRA requires an agency promulgating a rule\7\ to submit
a report to both Houses of Congress and to the Government
Accountability Office (``GAO'') containing: (1) a copy of the
rule; (2) a concise general statement describing the rule,
including whether it is a major rule (i.e., one that will
likely have an annual effect on the economy of $100 million or
more, increases costs or prices for consumers, industries or
State and local governments, or have significant adverse
effects on the economy);\8\ and (3) the proposed effective date
of the rule.\9\
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\7\As used in the CRA, the term ``rule'' means ``the whole or part
of an agency statement of general . . . applicability and future effect
designed to implement, interpret, or prescribe law or policy.'' 5
U.S.C. Sec. 551 (2006). See also 5 U.S.C. Sec. 804(3) (2008) (defining
``rule'' by reference to Sec. 551, with certain exceptions).
\8\5 U.S.C. Sec. 804(2) (2018).
\9\Small Business Regulatory Enforcement Fairness Act of 1996, Pub.
L. No. 104-121, subtitle E, 110 Stat. 857-74 (codified as 5 U.S.C.
Sec. Sec. 801-808).
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If the rule is a major rule, the agency must also submit to
GAO and each House of Congress: (1) a complete copy of any
cost-benefit analysis; (2) a description of the agency's
actions pursuant to the requirements of the Regulatory
Flexibility Act\10\ and the Unfunded Mandates Reform Act of
1995;\11\ and (3) any other relevant information required under
any other act or executive order.\12\
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\10\Regulatory Flexibility Act of 1980, Pub. L. No. 96-353.
\11\Unfunded Mandates Reform Act of 1995, Pub. L. No. 104-4.
\12\5 U.S.C. Sec. 801(a)(1)(B) (2018).
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The CRA authorizes Congress to disapprove an agency rule to
which it objects by enacting a joint resolution of
disapproval.\13\ Such a joint resolution must be introduced
within at least 60 days of the rule's submission to
Congress.\14\ For a joint resolution of disapproval to take
effect, it must pass both Houses of Congress and be signed by
the President.\15\ A joint resolution of disapproval can only
refer to a single rule and must follow the precise wording
prescribed by the CRA, stating after its resolving clause:
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\13\See 5 U.S.C. Sec. 802 (2015) (outlining congressional
disapproval procedure).
\14\5 U.S.C. Sec. 802(a) (2015).
\15\U.S. CONST. art. I, Sec. 7, cl. 2-3.
`That Congress disapproves of the rule submitted by
the __ relating to __, and such rule shall have no
force or effect.' (The blank spaces being appropriately
filled in).''\16\
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\16\5 U.S.C. Sec. 802(a) (2018).
If such a joint resolution is enacted into law, the
disapproved rule is deemed not to have been in effect at any
time.\17\ Additionally, the CRA prohibits an agency from
reissuing a rule ``in substantially the same form'' or issuing
``a new rule that is substantially the same'' as a disapproved
rule.\18\ The CRA prescribes special expedited procedures for
Senate consideration of a joint resolution of disapproval,
though it does not provide for similar procedures in the House
of Representatives.\19\ Most importantly, when the Senate acts
on a CRA resolution within 60 session days of the agency
submitting the rule to Congress, the resolution is not subject
to a filibuster.\20\
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\17\5 U.S.C. Sec. 801(f) (2015).
\18\5 U.S.C. Sec. 801(b)(2) (2015).
\19\5 U.S.C. Sec. 802(c) (2015).
\20\Maeve P. Carey and Christopher M. Davis, Cong. Research Serv.,
IF10023, The Congressional Review Act (CRA): A Brief Overview 2 (2023).
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Barring congressional action, a major rule goes into effect
on the latest of three possible dates: (1) 60 calendar days
after it has been submitted to Congress or has been published
in the Federal Register; (2) 30 session days after a
presidential veto of a joint resolution of disapproval or
earlier if either House of Congress votes and fails to override
such veto; or (3) the date on which the rule would otherwise
have gone into effect absent the CRA review requirement.\21\ A
nonmajor rule goes into effect as otherwise provided for by
law.\22\ In either case, Congress still has 60 legislative or
session days to disapprove the rule.
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\21\5 U.S.C. Sec. 801(a)(3) (2015).
\22\5 U.S.C. Sec. 801(a)(4) (2015).
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The CRA's reporting requirements allow Congress to be kept
regularly informed of rulemaking activity from all
administrative agencies.
B. H.R. 115, THE ``MIDNIGHT RULES RELIEF ACT''
H.R. 115 unnecessarily expands the CRA and is designed to
address a problem that does not exist.
1. The CRA Already Has a Lookback Period to Address Rules Promulgated
at the End of any Congressional Term
The CRA already gives Congress additional time to
disapprove rules submitted near the end of a congressional
session. Effectively, this also works for the end of any
Presidential term. For any rule submitted to Congress and the
GAO during the period beginning 60 legislative days (or, in the
Senate, 60 session days) before Congress adjourns a session,
the Act treats the rule as though it were submitted on the 15th
legislative (or session) day of the following congressional
session.\23\
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\23\5 U.S.C. Sec. 801(d)(1)-(d)(2)(A) (2018).
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From there, Congress has an additional 60 legislative (or
session) days to introduce a resolution of disapproval and take
advantage of the Act's expedited Senate procedures.\24\ This
end-of-session period under which the CRA extends the deadline
for resolutions of disapproval is referred to as the ``look-
back period.''\25\ In practice, the look-back period has tended
to begin running between mid-July and early August, meaning
that rules published after those dates are subject to
disapproval under the extended CRA deadlines.\26\
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\24\5 U.S.C. Sec. 802(e)(2) (2018).
\25\Jesse M. Cross, Technical Reform of the Congressional Review
Act (Nov. 30, 2021) (report to the Admin. Conf. of the U.S.) at 30.
\26\Id. at 35.
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2. H.R. 115 is Designed to Address a Problem That Does Not Exist
Congress intended the extended deadline for end-of-session
rules to address the perceived problem of ``midnight
rulemaking,'' the practice of an outgoing presidential
administration issuing a flurry of new rules before leaving
office.\27\ Both parties have raised concerns about midnight
rulemaking in the past.\28\ The practice can be problematic
because, if abused, midnight rulemaking enables an outgoing
president to bind his or her successor.\29\ A new
administration seeking to rescind or modify rules adopted under
the notice-and-comment provisions of the Administrative
Procedure Act would need to undertake a new round of notice-
and-comment, a process that could take months or years to
complete.\30\ On the other hand, a nonpartisan study of the
practice found that the uptick of rulemaking near the end of a
presidential administration results more often from ``deadlines
outside the agency's control'' rather than a desire to regulate
without political accountability.\31\
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\27\See Maeve P. Carey, Cong. Research Serv., R42612, Midnight
Rulemaking: Background and Options for Congress 11-12 (2016).
\28\Id. at 1-2; H. Comm. On the Judiciary Majority Staff, Final
Report to Chairman John Conyers Jr.: Reining in the Imperial
Presidency--Lessons and commendations Relating to the Presidency of
George W. Bush, at 181 (March 2009).
\29\Carey, supra note 160, at 1.
\30\See Jack M. Beerman, Midnight Rules: A Reform Agenda (May 14,
2012) (report to the Admin Conf. of the U.S.) at 69.
\31\Admin. Conf. of the U.S., Recommendation 2012-2, Midnight
Rules, (adopted June 14, 2012) at 1-2.
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Moreover, Congress has had no trouble considering a flurry
of CRA resolutions without the en bloc authority contained in
H.R. 115. For example, in 2017, the Republican-controlled 115th
Congress, with the support of the newly inaugurated Trump
administration, used the CRA to disapprove as many of the Obama
administration's rules as possible. In total, Congress passed
16 resolutions of disapproval at the start of the Trump
administration, nullifying Obama-era regulations on everything
from how employers maintain records of workplace injuries to
the protection of stream water from coal mining pollution and
financial disclosures mandated by the SEC.
III. Conclusion
The Midnight Rules Relief Act is a highly irresponsible and
dangerous proposal that would open numerous life-saving rules
up to significant political interference and would undo rules
that took years of agency time and public input, without much
more than a cursory review by Congress, in addition to
preventing these agencies from ever promulgating a
``substantially similar'' rule ever again. No matter who is in
office, this bill would allow Congress to nullify rules and key
agency oversight in an unchecked and unreviewable manner.
Project 2025, the blueprint for the incoming Trump
Administration, states that ``the only real solution is for the
national government to do less.''\32\ And to be clear, the
``less'' that they want to do refers to the important work
undertaken by the country's administrative agencies. Duly
enacted regulations at risk of summary execution include those
by the Consumer Financial Protection Bureau, Environmental
Protection Agency, the Federal Trade Commission, the National
Labor Relations Board, the Nuclear Regulatory Commission, the
Securities and Exchange Commission, the Small Business
Administration, the Department of Transportation, and the
Treasury.
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\32\See the Heritage Foundation, Project 2025 Presidential
Transitional Project, Mandate for Leadership: The Conservative Promise
(2023) at 83.
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This legislation would supercharge Republicans' ability to
pursue their anti-government agenda of dismantling the
regulatory process, enabling them to roll back months' and
years' worth of agency time and deliberation under cover of
darkness in a single party-line vote.
For all these reasons, I dissent, and I urge my colleagues
to oppose the bill.
Jerrold Nadler,
Ranking Member.