Presidential elections may bring a new party into power, and with it a new approach to governing. Entering office, the new Chief Executive may find a plethora of undesirable regulations from the administration of the prior White House occupant, including several last-minute actions (“midnight rulemaking”). Here is what the incoming president can do.
Regulations already in effect. There are two options a new Administration has when dealing with regulations already in effect:
- Under the Administrative Procedure Act (APA), all regulatory agency actions to “formulate, amend or repeal” a rule must follow the public notice and comment procedures familiar to anyone who tracks government rulemakings. Regulations are considered in effect when they have been published in the Federal Register as a Final Rule, and the effective date set out there has passed. Federal regulations generally become effective 30 or 60 days after publication as a Final Rule – but the effective date can be longer. If a regulation is already in effect, one route the new Administration may take is starting a whole new rulemaking procedure to change or repeal an existing regulation.
- If the political party of the new Chief Executive also controls the House of Representatives and the Senate, another option is to use the Congressional Review Act (CRA). The CRA has a set of expedited (“fast track”) legislative procedures to review regulations. Most of the CRA action occurs in the Senate. If the House and Senate pass a joint resolution of disapproval, and that resolution is signed by the President, the regulation at issue is considered null and void, as if it had never existed, and the regulatory agency is prohibited from issuing any regulation substantially similar in nature. The CRA became law in 1996. Over 200 joint resolutions of disapproval for more than 125 rules have been introduced since the CRA’s enactment, but it has been successfully used only 20 times.
Congress can always change or remove the statutory basis for certain regulations, thereby preventing their adoption in the future. Only the CRA facilitates Congressional disapproval of regulations already in effect.
Regulations not yet final. Every incoming president promises on “Day One in office” to take certain actions. For most recent presidents, a “Day One” activity has been the issuance of a moratorium on all regulatory activity.
That is not a partisan procedure: Ronald Reagan, Bill Clinton, George W. Bush and Barack Obama each called a halt to regulatory agency rulemaking activities until their nominated Cabinet members and agency heads were confirmed by the Senate and in control of their respective areas.
Specifically, the moratoria directed the heads and acting heads of regulatory agencies to 1) not send proposed or final rules to the Federal Register; 2) withdraw all rules which the Federal Register has not yet published; and 3) postpone for 60 days the effective dates for rules that had been published but not yet taken effect.
Moratoria generally do not apply to rules directly required by statute or by judicial decision. But for everything else, the “Day One” word from the new White House will be “stop,” until we can get our own people in place.