A Rush To Regulate

Presidential administrations have historically rushed to issue regulations in their final few months in office, but with nine months still left in this presidential term, that rush to the finish line is already evident. Polls show a tight race between President Biden and former President Trump, and the Biden administration appears to be working overtime to codify their regulatory priorities in time to shield them from change if the November election doesn’t go their way.

April was the busiest month on record for big ticket rules (those with estimated annual impacts of $200 million or more). The Office of Information and Regulatory Affairs (OIRA), which reviews all executive branch agency rules before publication, concluded its review of a whopping 42 such economically significant final rules in April, compared to fewer than five in an average month. According to the American Action Forum, in the first four months of 2024 alone, the Biden administration has issued regulations that—by agencies’ own estimates—will impose new costs on the public of more than $1 trillion dollars per year.

What accounts for this burst of regulatory activity with so many months to go in the term? A once obscure law known as the Congressional Review Act (CRA). If the November election brings Republican control of the White House and Congress, rules issued later in the summer or fall may be subject to review and disapproval in 2025. The CRA provides for expedited Senate procedures after which Congress can send a joint resolution disapproving a regulation to the president’s desk. Presidents tend to veto such disapprovals of their own administration’s rules, but a presidential transition offers a unique window in which a disapproval resolution could land on a sympathetic president’s desk. This is what happened in 2017, when newly inaugurated President Trump signed 15 resolutions disapproving regulations issued toward the end of the Obama administration. President Biden himself signed three disapprovals of Trump-era rules when he took office in 2021.

Exactly when the Biden administration’s deadline is for avoiding a similar fate for its priority rules is uncertain. The CRA gives Congress a 60 working day window during which disapprovals can be introduced and considered. But, if a rule is submitted late enough in the year that either the House or Senate doesn’t get the full 60-day review period, a “lookback” provision ensures the next Congress can review the rule (see graphic).

We won’t know for sure until after the 118^th Congress adjourns for the year what the cutoff date is for the next Congress’s review, but based on the current congressional calendar, it could be as early as May 22, 2024. A report for the Administrative Conference of the United States found that, on average across past presidential transitions, the lookback date was July 18. So, there’s a fuzzy spring/summer deadline after which final rules could be vulnerable to CRA disapproval in the 119^th Congress.

Given April’s flurry of activity, President Biden’s OIRA seems to be operating with the May deadline in mind. After OIRA concludes review of a rule, it can take weeks for the Federal Register to format and publish it, and it’s the Federal Register publication date (or the date the agency submits the rule to Congress, whichever is later) that starts the CRA clock. After concluding review of 42 economically significant rules in April, OIRA seems to have cleared its decks, as only seven more such rules are currently under review.

While the Biden administration is clearly taking the CRA deadline seriously, I don’t think it has finished issuing new rules for the duration of this term. It may have focused on getting its most controversial priorities out the door early, but more are certain to come. Moreover, even with expedited procedures, Congress simply won’t have time to spend disapproving more than a few dozen rules. During the 2016-2017 lookback window, the Obama administration issued more than 2,400 final rules, so the precedent-setting disapproval of 15 affected less than one percent of them.

Many of the controversial rules now being issued, if not reversed by congressional action, are likely to face litigation or revision by a future administration (which could take years). It is troubling to see our regulatory agencies dodging and weaving to avoid reversal by Congress, the courts, or a future president. But regardless of the party in power, that appears to be the world we are now living in.