The Ride of the Midnight Regulations

Phil Jensen


The national nightmare that is the Obama administration will soon be over, and the people who made it a nightmare still have pens and phones. From Executive Amnesty to the ad-hoc to the Obama’s administration’s effort to stifle energy exploration and usage, regulatory overreach has been the hallmark of the Obama administration. In a move to appear non-partisan, the Obama administration has promised there would be no last minute, “midnight regulations” as the clock runs out in January of 2017. Or are they?

Howard Shelanski, an administrator of the Office of Information and Regulatory Affairs (OIRA), told Bloomberg BNA that “There will not be a big package of surprise regulations at the end of this administration, if I have anything to say about it.”

The problem is that unlike the Bolton memo in the Bush administration that provided a date certain after which regulations would stop, the Obama administration is not committing to any end date before January.

Rick Kriebel 2016


Granted, if regulations have been in the pipeline for a while and machinations are continuing between the various departments of the administrative state, it can be difficult to nail down the exact time.  However, a quick look at OIRA’s regulatory schedule makes one doubt the veracity of the pledge.


With 125 “pending actions” ranging from Health and Human Services to the Department of Labor to the Environmental Protection Agency, to say nothing of the so many more that are in the pre-rule stage, it is hard to believe they can slam on the brakes in the near future on all of them. Many of these regulations will likely fall to the next administration, meaning they will be held up to the daylight of the voters’ choice in November. That’s how it should be.

The concern is that the Obama administration will press on with its radical regulatory agenda even in the face of the voters voting against them, making all the harder for the next administration to reverse course. The Bush administration did allow the regulatory process to move forward beyond their 2008 deadline in a few instances, according to Americans for Limited Government’s Nathan Mehrens, who was at the Department of Labor at the time. However, Mehrens says that it required special approval to move forward.

Woodrow Wilcox


“Things that change regularly are things that are part of a multi-year process. We had regulations in the pipeline, but they required a high level clearance to push them through. The deadline was required, and enforced from the top.” Mehrens said.

Given that the Bush administration had a deadline, and stopped a number of regulations from being finalized, what stops the Obama administration from citing similar constraints with their regulations, and then regulate right up to inauguration day?

Fortunately, Rep. Ken Buck (R-Colo.) has put forth the Article I supplemental, which would ban any midnight regulations from Obama, for just this reason.

Congress has the opportunity to legislate on this basis, using the law to hold the Obama administration to its promise; in light of the fact that the administration has regulated in the manner it has, a muscular Congressional action is the only way to ensure that there are no ugly surprises pending for the next administration to implement.

For a chance at success, the Buck bill might be attached to the Puerto Rico bailout or Zika virus funding that Obama is less likely to veto.

The President has been fond of talking about the GOP driving the country into the ditch.  While he has been behind the wheel, arguably he has done this and worse.

As Mehrens said, “Congress’ action can put guideposts in place to keep them on the road.”

If the Obama administration is expected to keep its word that there will be no midnight regulations, what can it hurt to pass a law to keep them honest? Congress needs not to trust, but to verify that Obama’s regulatory overreach will end sooner rather than later.



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Dustin Howard is a staff writer and social media manager for Americans for Limited Government. Originally from the Missouri Ozarks, Howard has held numerous positions in Republican politics, including executive director of a northern Virginia Republican party and a staffer in county government.
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