Federal agency curbs move in House but may stall in Senate

The U.S. House of Representatives has quickly acted on legislation to curtail the ability of federal agencies to implement new rules, but some of these efforts may stall in the U.S. Senate, which is focused on other priorities. 

The Midnight Rules Relief Act passed the U.S. House of Representatives by a 238-184 vote on Jan. 4, but no action has been taken in the Senate since Jan. 5, when the bill was referred to the Committee on Homeland Security and Governmental Affairs. The legislation would amend the Congressional Review Act to allow Congress to pass resolutions rolling back multiple midnight rules issued at the end of a presidential term. 

“Under the CRA, you can just introduce one rule at a time that you want to invalidate or overturn, but the Midnight Rules Relief Act would allow Congress to introduce a joint resolution that would address multiple rules so you can package multiple rules together and pass that through,” said Lauren Claycomb, a Louisville, Kentucky-based attorney with Fisher Phillips L.L.P. 

The bill could basically allow Congress to overturn resolutions in bulk rather than one at a time per the current Congressional Review Act, which can be time-consuming, said Punam Kaji, a Houston-based attorney with Haynes & Boone L.L.P. If the bill is adopted, one resolution could overturn the previous six months of regulatory rules, she said. 

“I think that’s a brash way of doing things, but it will be interesting to see if that ever does pass,” Ms. Kaji said. 

Despite the House support for the Midnight Rules Relief Act, the legislation may stall in the Senate, which has several other priorities to contend with such as confirming President Donald Trump’s picks for labor secretary and Supreme Court justice, said Todd Logsdon, a Louisville, Kentucky-based partner at Fisher Phillips.

“I’m just not sure how high it is on the Senate’s list of priorities,” he said. “They’re trying to get some appointees confirmed. They’re working on Affordable Care Act issues and other things that are probably higher on their list.” 

Meanwhile, the Regulations from the Executive in Need of Scrutiny Act of 2017, also known as the REINS Act, was adopted by the House by a 237-187 on Jan. 5, but the Senate has not acted since Jan. 6 when the bill was also referred to the Committee on Homeland Security and Governmental Affairs. The bill would require new federal regulations with an annual economic impact of more than $100 million to be voted on by Congress and signed by the president before they can take effect.

The Regulatory Accountability Act of 2017 would, among other things, repeal the so-called Chevron deference, which requires courts to defer to interpretations of statutes made by the government agencies that enforce them. The bill passed the House by a 238-183 vote on Jan. 11 and was referred to the Senate Committee on Homeland Security and Governmental Affairs the next day.

“We’ve been keeping a really close eye on that one because it would basically eliminate the Chevron deference,” Ms. Kaji said. “I think the biggest outcome of that from a legal perspective is that courts basically could rule differently. We could see one circuit go one way on an interpretation and another circuit go in a completely different direction because they no longer have to defer to the agency.”

That’s not to say that the Senate has failed to act on any bills or resolutions adopted by the House, according to experts. Just last week, the Senate adopted a resolution to overturn the Fair Pay and Safe Workplaces Executive Order, which President Barack Obama signed in July 2014, by a 49-48 vote after the House approved the resolution by a 236-187 vote in early February. Commonly known as the blacklisting rule, it would require bidders for federal contracts valued at more than $500,000 to disclose any violations of federal labor laws dating back three years. 

“Relying on the power granted it by the Congressional Review Act, Congress has all but sealed the fate of the ‘blacklisting’ executive order,” Laura Mitchell, a Denver-based principal with Jackson Lewis L.L.P., said in a blog post. “The next and final step to undo the executive order is sign off of the disapproval resolution by President Trump. It is anticipated he will do so without much deliberation.”

Parts of the rule had already been enjoined by a federal court in October 2016, and Mr. Trump’s signature means the executive order will be dead and the lawsuit challenging it will be moot, she said.