GOP Poised to Undo Obama ‘Midnight Regulations’

Targeted rules include overtime, methane emissions and business loan debt

Republicans are targeting a host of federal regulations issued under President Barack Obama when the new GOP administration takes over in January. (Tom Williams/CQ Roll Call file photo)
Republicans are targeting a host of federal regulations issued under President Barack Obama when the new GOP administration takes over in January. (Tom Williams/CQ Roll Call file photo)
Posted January 4, 2017 at 5:00am

Congressional Republicans are poised to apply an infrequently used legislative gambit to formally disapprove of — and likely roll back — a host of federal regulations adopted since June on President Barack Obama’s watch. 

Rules dealing with disparate issues from overtime pay to federal funding for Planned Parenthood are being touted as targets for elimination under the Congressional Review Act, a vestige of the House GOP’s “Contract With America” that allows lawmakers to use a simple majority vote to rescind a regulation within 60 legislative days of publication. The law has only been successfully used once in its 20-year history.

Precisely how much the GOP can accomplish remains unclear. While Republicans will have control of the White House and both chambers of Congress, resolutions brought up under the act to strike individual rules will have to vie for time with President-elect Donald Trump’s early agenda items and Senate confirmation votes on his Cabinet nominees. Some experts believe conservatives will nonetheless try to seize a short window of opportunity to whittle away at Obama’s legacy.

“We would have a new Republican government with a new Republican majority with a deregulatory bent aimed at undoing Democratic initiatives,” said Sarah Binder, a senior fellow at the liberal-leaning Brookings Institution.

The Heritage Foundation, a conservative think tank, said the efforts to use the Congressional Review Act come at a time when “the stars seem aligned.”

House committee aides have been mum on what rules would be targeted first. An aide for the Ways and Means Committee, which oversees tax policy, trade, and entitlement programs, called the deliberations “an ongoing process.”

An aide to the Energy and Commerce Committee, which would consider a resolution that could roll back an energy efficiency rule relating to climate policy, said the panel was figuring out which regulations would qualify.

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The Senate Republican Policy Committee has listed 11 regulations suitable for elimination under the Congressional Review Act.

The list includes a Labor Department rule that more than doubled the salary threshold for full-time employees to get overtime compensation. Though its legality is tied up in court, a resolution to strike the rule altogether could originate in the House Education and the Workforce Committee.

Another rule expected to be finalized by the Obama administration before it departs would prevent states from blocking federal Title X family planning funds to Planned Parenthood because some of its clinics provide abortion services.

Senate Majority Leader Mitch McConnell of Kentucky has said he’ll target an Interior Department rule that protects streams from the effects of coal mining. 

Lawmakers have 60 legislative days from the time a rule is finalized to pass resolutions of disapproval. The resolutions either have to be signed into law by the president or enacted over his veto by two-thirds of both houses of Congress. House lawmakers could act until May 17 at the latest, according to the current 2017 calendar.

The Congressional Research Service determined that rules which have become final under the Obama administration since June 13 could qualify for Congressional Review Act disapproval. But Obama foes won’t have many successful precedents to draw on as they try to scotch the so-called midnight regulations.

Since its enactment in 1996, the Congressional Review Act has only been used to kill one regulation. In 2001, former President George W. Bush signed a resolution that overturned an Occupational Safety and Health Administration rule issued at the end of the Clinton administration, dealing with workplace ergonomic standards.

That was the last time both the executive and legislative branches were controlled by Republicans following a Democratic presidential administration — the same scenario that will play out after Trump is inaugurated this month.

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Trump could opt to act unilaterally and reverse some Obama regulations through executive orders. Congress could also choose to overturn some agency rules through the customary legislative process. But the Congressional Review Act is seen by some as an expedited process that limits debate and does not allow for amendments.

Diane Katz, a senior research fellow of regulatory policy at The Heritage Foundation, said while the act is a useful tool to address executive overreach, the remedy, generally speaking, should be creating a better regulatory process in which the legislative branch has a stake.

Katz said Congress for too long, under both Democratic and Republican control, hasn’t used its oversight power properly.

“Congress should stop giving away their legislative authority,” Katz said. “They’re all guilty of deferring to the agencies much more than they should.”

Contact Rahman at or follow her on Twitter at @remawriter