Republican lawmakers are bracing for a slew of last-minute rules and regulations, as well as more executive actions to place swaths of land under federal protection, during President Barack Obama's final months in office.
“Midnight regulations” are a feature of any lame-duck administration and represent a president's last opportunity to lock in rules on legacy issues. In many instances, GOP members acknowledge they are powerless to stop him.
Obama first served notice that he'd take such a tack in January 2014, when he vowed to use the legal authorities of the office of the president to act when Congress would not — or could not — do so. “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need,” he said then. “I’ve got a pen and I’ve got a phone."
White House aides in recent weeks have made it clear that Obama will continue to use his legal authorities on whatever he deems important to wrap up before he leaves the Oval Office on Jan. 20. Major regulatory changes require a 60-day waiting period, meaning Obama theoretically has until late November to tend to his to-do list.
“I don’t mean to say that George W. Bush wasn’t active in the regulatory realm — they all are,” said Diane Katz, a research fellow in regulatory policy at the Heritage Foundation. “But Obama is in a different league. He’s been direct about using all of the administrative means at his disposal.”
Data compiled by the Heritage Foundation found that the Obama administration issued 184 major rules during its first six years. The conservative organization, citing regulators’ estimates, says those could come with a price tag of almost $80 billion a year.
The American Action Forum, which dubs itself as a “center-right” think tank, concludes that since Jan. 1 of this year, the administration has picked up the pace, finalizing 60 new rules and proposing 60 more at a potential cost of $16.5 billion next year alone.
Republican lawmakers and independent experts expect more to come. But Senate Majority Whip John Cornyn of Texas told Roll Call that his party cannot do much because “the framers of the Constitution didn’t give us a lot of tools that didn’t involve a presidential signature to overturn them.”
Cornyn said Obama seems to be in a “frenzy mode on his way out the door.”
“To my mind, he’s doing a lot of damage that’s going to take a lot of time and effort to repair. I do expect more. That’s been his M.O.,” Cornyn said. Back in Texas, he added, his constituents routinely complain about “strangling” rules and regulations issued via the EPA, the Labor Department and the Consumer Financial Protection Bureau.
Senate Banking, Housing, and Urban Affairs Chairman Richard Shelby is watching banking and consumer finance regulations that come under his panel's purview. “We don’t know what he’s coming with. This president has set a precedent that none of us has seen in recent years,” the Alabama Republican said in an interview. “He’s tried to do everything by regulation rather than legislation.”
To be sure, there are 1,500 proposed rules and regulations in the pipeline, according to the White House Office of Management and Budget. That includes over 700 dubbed “economically significant” in the key final stage, and Katz said those are the ones to watch.
Jerry Ellig, a senior researcher at George Mason University’s Mercatus Center, has found that even though George W. Bush administration officials tried to tamp down midnight regulations, eight major rules proposed after June 1, 2007 carrying the “economically significant” stamp were enacted. And nine more were proposed.
Ellig sees this as a major problem because such last-minute regulations are often crafted with “lower-quality regulatory analysis, and agencies are less likely to use the analysis to make decisions about the regulation.” That means, he has concluded, “these regulations are more likely to be ineffective or excessively costly.”
GOP Sen. Jeff Flake of Arizona, a member of the Energy and National Resources Committee, is particularly concerned about Obama’s increased use of the 1906 Antiquities Act to place certain lands off-limits to development.
So far, Obama has placed 548 million acres under federal protection, over twice as much as even Theodore Roosevelt, whose 230 million shielded acres earned him the “conservationist president” moniker.
Those worried about more unilateral designations before Obama leaves in January are captive to his whims, Flake said. Conversely, however, White House Press Secretary Josh Earnest has maintained that Congress' refusal to preserve lands and marine areas has given Obama the latitude to follow his gut.
Katz said GOP members should look in the mirror when searching for who to blame.
“Many regulations are a response to legislation that is not as explicit as it should be,” she said. “This is not by mistake: Congress gets to say we’ve done some things about [an issue]. Then, when the executive branch acts in response to the legislation, they criticize the agency.”