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Barack Obama’s presidency may be waning, but that isn’t stopping the administration from issuing a volley of new regulations designed to implement the departing president’s agenda.

From commodities speculation to air pollution, Medicare drug payments to protecting funding for Planned Parenthood, agencies are hard at work issuing mandates, grasping at their last opportunity to lock in rules on Obama’s legacy issues.

These actions are nothing new. In fact, “midnight regulations” are almost a permanent feature of lame-duck presidents. Midnight regulations spiked under President Bill Clinton and were also used extensively by President George W. Bush.

However, President Obama has been far more direct about using the regulatory state to impose his agenda nearly by executive fiat — or without the approval of Congress. Under Obama, regulations have exploded. According to the Heritage Foundation, the Obama Administration issued 184 major rules during its first six years in office — at a cost of almost $80 billion a year.

Though only two months remain in Obama’s term, there are thousands of rules yet to finalize. Over 1500 proposed rules and regulations are in the pipeline, including over 700 dubbed “economically significant” — meaning those that cost the economy over $100 million per year. It’s these regulations that are likely candidates to be imposed in a last-minute flurry.

Is Congress powerless to stop this power grab by the executive branch?

Yes. And no.

By law, Congress has the authority to issue a “congressional review” of regulations it finds objectionable. Congress has 60 days to hold and up or down vote on regulations it chooses to review. This is tougher than it sounds — in fact, since its enactment, the Congressional Review Act (CRA) has only been successfully used once.

So, really, Congress provided itself with a tool to challenge executive regulations that is nearly impossible to utilize. I’m not too shocked.

However, this shouldn’t stop Republicans in the new Congress from seeking every opportunity to use the CRA. President Obama has issued more regulations — and at greater cost — than any sitting president to date. It is the constitutional role of Congress to check an overly-enthusiastic executive, and to do so requires Congress to muster the will to assert itself against this regulatory excess.

There is another way in which Congress can assert a permanent check on the power of the executive, and that is by passing the Regulations in Need of Scrutiny Act, or the REINS Act. This proposed bill would require every major regulation — those costing the economy $100 million or more per year — to receive an approval vote from Congress before it can go into effect.

Such a law, if enacted, would put accountability back where it belongs — in the hands of Congress, and the members that have been elected by the people. No longer would agency bureaucrats be able to write billion dollar regulations and impose them on the voters, who lack the recourse to stop them.

It is vital that Congress reasserts its Constitutional authority as a check on the executive branch.

Consider the regulatory burden imposed by President Obama, without the approval of Congress:

  • Obama’s air pollution rule would be “the most expensive regulation ever imposed on the American public,” according to the National Association of Manufacturers, who calculated the rule would cost $3.4 trillion in economic output, and 2.9 million jobs by 2040.
  • The Obama administration’s rules on the financial industry reach over 19,000 pages so far.
  • EPA’s rule on emissions for automobiles costs $2.4 billion annually, according to one estimate.
  • The Federal Policy for the Protection of Human Subjects, a rule co-authored by every cabinet agency, could impose more than 12.1 million paperwork hours onto the medical research industry (in addition to costing $13.3 billion).

The regulatory state now comprises a literal “fourth branch” of government — one that is unchecked, and unaccountable. It is vital that Congress reasserts its Constitutional authority as a check on the executive branch. The new Congress must act aggressively to counter Obama’s surge of midnight regulations with the Congressional Review Act, and they must pass the REINS Act to subject major regulations to Congressional scrutiny.

More than that, however, this new Congress must be cautious about giving so much authority away to federal agencies. In many cases, harmful regulations are the result of Congress giving agencies vague directions and overly broad mandates. Too often legislation is passed that is half-written; allowing unelected bureaucrats to fill in the holes. If government is going to work as the Founders intended, then Congress must stop shirking the hard work of legislating, and write bills that contain clear direction — and limits — for agency power.

Unfortunately, midnight regulations are only part of a much larger regulatory problem. Unless Congress acts quickly, America will continue to be governed by unelected bureaucrats, accountable to no one but themselves. If this new Congress is serious about “draining the swamp,” their first step will be to rein in regulatory state.



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