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A New Bill to Stop Midnight Regulations

The regulatory state has grown into the fourth branch of government. Executive branch agencies act with impunity, without accountability to Congress or to the voters. The Secretaries of Education, Energy, and Health and Human Services are basically unelected lawmakers who have the power to dramatically affect the lives and prosperity of every American citizen.

There’s only one time when the regulators are more dangerous than they are right now: after an election, before the new president is sworn in. In this “lame duck” period, the president has no incentive to please voters. He’s already on his way out, and is ineligible for re-election. Congress is any a similar position; with multiple retirements and defeats, they are never less accountable to the voters than during a lame duck session. This means that there is rarely any appetite to stop bad things from happening before the start of the next Congress.

Regulations passed in this period are called “midnight rules”; no one knows or cares enough about them to stop them, and they have more potential to do harm than at any other time. This realization lies behind the Midnight Rule Relief Act of 2016. This bill, sponsored by Sen. Joni Ernst (R-IA) in the Senate and Rep. Tim Walberg (R-MI-7) in the House, would prevent regulatory agencies for finalizing any major rule during the lame duck period, with an exception for a national emergency or imminent threat to national security.

This kind of pre-emptive action is how Congress needs to start thinking. The Midnight Rule Relief Act would stop bad regulations before they happen, instead of waiting until the last minute to intervene. At that point, it’s usually too late to do much, barring lengthy and expensive court battles or difficult-to-pass legislation attacking each rule individually. Putting a blanket moratorium on midnight regulations is a smart way to ensure that anything regulatory agencies attempt to do receives the proper oversight.

It also ties into Sen. Mike Lee’s (R-UT) Article I Project to restore lawmaking power to Congress, and roll back expansions in executive power. For Congress to exert its authority here and block midnight regulations sends a message to the executive branch that it cannot simply regulate with impunity, that Congress still holds the power of the purse, and that the Constitution allows Congress and only Congress to make laws that determine how the rest of us live. It’s time to restore accountability in Washington, and stop regulators from riding roughshod over our liberties.