The Coming Regulatory Onslaught
On Monday April 4th, the Treasury Department announced new regulations regarding inversions. In their announcement, Treasury said they would move “swiftly to finalize [the regulations].”
On Wednesday, April 6th, the Department of Labor published its final Fiduciary rule.
Multiple press outlets have noted the uptick in the Obama Administration’s regulatory actions.
Yet the pace of regulatory activity is likely to significantly increase in the coming weeks and months as the Obama Administration seeks to (1) shield new regulations from potentially being overturned by Congress and the next Administration under the Congressional Review Act and (2) ensure that regulations are published in final form prior to the next President taking office.
The Push to Finish Regulations:
Last December the Office of Management and Budget (OMB), told agencies in a memo to “strive to complete their highest priority rulemakings by the summer of 2016…”
Similarly, in May of 2008, President Bush’s chief of staff sent a memo to agencies stating that except for “extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008.”
There are a few deadlines driving the regulatory rush:
- Need to publish final rules prior to January 20, 2017. — Prior to final publication in the Federal Register, a rule can be withdrawn unilaterally, this includes being withdrawn by the new Administration that takes office on January 20th at noon. Upon taking office, Presidents Reagan, Clinton, Bush, and Obama all directed that agencies (including in some instances independent agencies) refrain from publishing unpublished final regulations pending further review, thus preventing the regulations from taking effect. These directives usually exclude regulations with statutory or judicial deadlines.
- Congressional Review Act’s 60-day clock. — Under the terms of the Congressional Review Act (CRA), Congress has 60 legislative days to utilize the expedited procedures of the CRA to pass a resolution of disapproval overturning a finalized regulation, including regulations issued by independent agencies. If Congress adjourns for the year prior to both the House and Senate exhausting their 60 day clock, the clock resets at the beginning of the new session of Congress and Congress has another 60 legislative days to utilize the CRA.
If the House and Senate follow their currently published schedule, regulations submitted after May 18 would likely be caught in the reset of the 60 day-clock and the next Congress and new President could utilize the CRA to overturn a final regulation.
If, however, the Senate refuses to pass adjournment resolutions allowing the House to adjourn for more than 3 days at a time (the Senate is not adjourning because of the Supreme Court vacancy), the House would need to meet more frequently than currently planned. This could push the date by which published regulations could avoid the being carried over into the new Congress until approximately the first week of August.
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