Issa and the Constitutionality of the Midnight Rules Relief Act

Former DPOC executive director Mike Levin is a prominent attorney in the clean technology industry and is a longtime friend.  He started his own blog focusing on national politics and how it affects us locally shortly after the election of Donald Trump.

He’s graciously allowed us to republish the post below which features an interview with UCI Law School Dean Erwin Chemerinsky.  If you want to see this post and Mike’s blog, send him some traffic here.


On Friday, I interviewed constitutional law expert Erwin Chemerinsky, Dean of the University of California, Irvine School of Law.  Among other things, Dean Chemerinsky and I discussed the “Midnight Rules Relief Act,” which passed the House last Wednesday and is pending before the Senate.  This bill will allow Congress to overturn, with a single vote, executive branch regulations finalized in the last 60 legislative days of an outgoing Presidential administration.

I had a hunch that the Midnight Rules bill might be an unconstitutional violation of the separation of powers, and Dean Chemerinsky agreed, adding that a legal challenge is warranted.  Constitutional issues aside, after reading several analyses and reviewing many of the regulations in question, I am extremely concerned that the bill is a gross overreach of Congressional authority that violates the public interest.  To those reading this post, please get all the way to the end and let me know if you agree.

On November 18, David Dayen wrote an excellent piece in The Fiscal Times, “The Latest Republican Trick to Roll Back Obama’s Rules.”  Dayen calls Issa’s bill a “legislative trash compactor” designed to maximize the “rollback of the Obama regulatory state.”  More importantly, he puts the bill in context by providing a history of how Congress can currently prevent regulations through legislation, and why that’s not good enough for some in the GOP.

The bill is a mutation of the Congressional Review Act (CRA) of 1996, which passed during the heyday of Newt Gingrich’s Contract with America.  The CRA currently gives Congress the ability to overturn any executive branch regulation within 60 legislative days of it being finalized in the Federal Register.  All it takes is passing a resolution of disapproval by majority in the House and Senate, and signature by the President (or a two-thirds veto override of the President by both houses).

A key aspect of CRA is that it allows 60 legislative days – not 60 calendar days – for Congress to act on a regulation they don’t like.  Legislative days only count if Congress is in session, which isn’t as frequent as we may think.  The Congressional Research Service estimates that counting back 60 legislative days from the end of Obama’s term should allow the new Congress the ability to override regulations introduced since May 30, 2016.

The ability to overturn all regulations since the end of May 2016 sounds good enough, right?  It should be.  But to overzealous Republicans like Darrell Issa, it’s not.

As Dayen points out, the new Congress has “Donald Trump’s entire cabinet to confirm,” as well as a short-term funding bill to consider that will take up precious floor time – therefore, “it doesn’t seem metaphysically possible to kill all the rules Republicans desire in the specified time.”

And Issa wants them all dead – every single one.  So, his bill allows multiple CRA resolutions to be combined into, as Dayen calls it, “one big ball of disapproval” that “eliminates the timing problem by vanquishing all the rules Republicans want with one resolution rather than dozens.”

In sum, the bill creates a painfully efficient process to completely wipe out several months of Obama Administration regulations produced by several executive agencies.  It’s worth noting that most of these regulations took these agencies many years to shape – the notion they are being ginned up in the dark of “midnight” is a myth.  In fact, a July 2016 report by Public Citizen suggests that since 1999, rules issued during the Presidential transition period have not been rushed at all – the facts show that agencies have spent even more time crafting them, with more extensive vetting.

So, you might be asking, what are these horrible regulations that Republicans like Issa are trying so hard to kill?  Constitutional questions aside, I believe that if citizens understood the actual regulations at stake, a broad majority would be furious that the new Congress wants to kill them all at once.  Many are simply common sense.

A recent Politico summary broke the regulations down into several key categories, including energy, education, financial regulation, transportation and trade.  Here are some highlights:

  • Preventing methane emissions from oil and natural gas production and fracking, including on oil and gas wells inside national wildlife refuges.
  • Promoting solar and wind projects on federal land.
  • Requiring precious metal mining operations to demonstrate they can afford to clean up the pollution they cause.
  • Improving emergency preparedness at chemical plants, to try to avoid another fertilizer plant explosion like the one in West, Texas in 2013.
  • Preventing water pollution from coal mining.
  • Cutting off federal funding to for-profit college programs whose students end up with high loan debt relative to their income (think about recent scandals close to home at ITT and Corinthian Colleges).
  • Holding schools and school districts accountable for student learning and progress, and ensuring that poor and minority students get their fair share of state and local education funding.
  • Placing curbs on commodities trading by some investors to discourage speculation.
  • Restricting payday lending and the use of mandatory arbitration clauses that prevent consumers from taking predatory lenders to court.
  • Easing the adoption of “connected” technologies, which allow cars to communicate with each other and with features such as traffic lights.
  • Banning cellphone calls on commercial flights.
  • Basing doctors’ Medicare drug payments on the quality of care they provide.
  • Allowing high-skilled immigrant workers who change jobs a one-time, 60-day grace period between visas.
  • Protecting federal funding for Planned Parenthood.

The list goes on.  My question for Issa and those in support of this bill is simple: which of the above regulations don’t you like?  If the answer is “all of them,” I think you have some serious explaining to do to your constituents and the American people.  Most of these regulations are sensible, practical, and reflect years of diligence and preparation by their respective agencies.  For Congress to try to take a wrecking ball to all of them at once is a gross abuse of Congressional power that we must stand and fight against.

Stay tuned and please let me know what you think in the comments section.


  1 comment for “Issa and the Constitutionality of the Midnight Rules Relief Act

  1. Lynette Vieira
    January 15, 2017 at 1:57 pm

    Darryl Issa is not really thinking this through. He just wants to get rid of anything that Obama put in place, even it was good. Does he have that much disrespect for our leader (at the moment). He almost lost his reelection and I would think he would rethink some of his positions. Mr. Issa needs to remember that he represents both Republicans and Democrats in his district not just” the party of Darryl Issa”.

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