U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

79–010 

" ! SENATE 115TH CONGRESS

1st Session 

REPORT

2017

115–164 

Calendar No. 233 

MIDNIGHT RULES RELIEF ACT OF 2017 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

WITH MINORITY VIEWS 

TO ACCOMPANY

S. 34 

TO AMEND CHAPTER 8 OF TITLE 5, UNITED STATES CODE, TO 

PROVIDE FOR EN BLOC CONSIDERATION IN RESOLUTIONS OF 

DISAPPROVAL FOR ‘‘MIDNIGHT RULES’’, AND FOR OTHER 

PURPOSES 

OCTOBER 5, 2017.—Ordered to be printed 


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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, North Dakota 

STEVE DAINES, Montana 

CLAIRE MCCASKILL, Missouri 

THOMAS R. CARPER, Delaware 

JON TESTER, Montana 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

CHRISTOPHER R. HIXON, Staff Director 

GABRIELLE D’ADAMO SINGER, Chief Counsel 

SATYA P. THALLAM, Chief Economist 

MARGARET E. DAUM, Minority Staff Director 

STACIA M. CARDILLE, Minority Chief Counsel 

CHARLES A. MOSKOWITZ, Minority Senior Legislative Counsel 

KATHERINE C. SYBENGA, Minority Counsel 

LAURA W. KILBRIDE, Chief Clerk 


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Calendar No. 233 

115TH CONGRESS SENATE REPORT " ! 1st Session 115–164 

MIDNIGHT RULES RELIEF ACT OF 2017 

OCTOBER 5, 2017.—Ordered to be printed 

Mr. JOHNSON, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany S. 34] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 34) to amend Chapter 8 of title 

5, United States Code, to provide for en bloc consideration in resolutions of disapproval for ‘‘midnight rules’’, and for other purposes, 

having considered the same, reports favorably thereon without 

amendment and recommends that the bill do pass. 

CONTENTS 

Page 

I. Purpose and Summary .................................................................................. 1 

II. Background and Need for the Legislation ................................................... 2 

III. Legislative History ......................................................................................... 4 

IV. Section-by-Section Analysis .......................................................................... 4 

V. Evaluation of Regulatory Impact .................................................................. 4 

VI. Congressional Budget Office Cost Estimate ................................................ 4 

VII. Minority Views ............................................................................................... 6 

VIII. Changes in Existing Law Made by the Bill, as Reported ........................... 8 

I. PURPOSE AND SUMMARY

The Midnight Rules Relief Act of 2017, S. 34, amends the Congressional Review Act (CRA) to allow Congress to consider multiple 

regulations within a single resolution of disapproval. 


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1Susan E. Dudley, Reversing Midnight Regulations, Mercatus Ctr. (2001), https://object.cato.org/sites/cato.org/files/serials/files/regulation/2001/4/dudley.pdf. 2See Jack M. Beermann, Midnight Rules: A Reform Agenda, 2 Mich. J. of Envtl. & Admin. 

L. 285, 285–384 (2013) (Beermann uses 90 days as the Midnight period). 3See U.S. Fed. Reg., https://www.federalregister.gov/ (last visited Sept. 1, 2017). 4See Veronique de Rugy & Antony Davies, Midnight Regulations and the Cinderella Effect, 38 J. of Socio-Econ. 886, 886–890 (2009). 5 Jay Cochran III, The Cinderella Constraint: Why Regulations Increase Significantly During 

Post-Election Quarters (Mercatus Ctr., Working Paper, 2001); William G. Howell & Kenneth R. 

Mayor, The Last One Hundred Days, 35 Presidential Stud. Q. 533, 533–553 (2005) (Scholars had 

long observed the broader phenomenon of outgoing administrations undertaking ‘‘lame duck’’ 

policymaking; for example, John Adams’s appointment of ‘‘midnight judges’’). 6 Jerry Ellig, Patrick A. McLaughlin & John F. Morrall III, Continuity, Change, and Priorities: 

The Quality and Use of Regulatory Analysis Across U.S. Administrations, 7 Reg. & Governance 

153, 153–173 (2013). 7 ‘‘[O]ne additional economically significant regulation submitted to OIRA decreases the mean 

review time for all regulations by about two thirds of a day.’’ See Patrick A. McLaughlin, The 

Consequences of Midnight Regulations and Other Surges in Regulatory Activity, 147 Pub. Choice 

395, 395–412 (2011); see also Jerry Brito & Veronique de Rugy, Midnight Regulations and Regulatory Review, 61 Admin. L. R. 163, 163–196 (2008). 8McLaughlin, supra note 7. 

II. BACKGROUND AND THE NEED FOR LEGISLATION

‘‘Midnight rulemaking’’ refers to a phenomenon whereby outgoing 

administrations, especially when the incoming administration is of 

a different party, engages in a significant increase in regulatory activity. In particular, this means a marked increase in last-minute 

regulations issued by regulatory agencies before installation of the 

new administration’s political appointees—‘‘like Cinderella leaving 

the ball.’’ 1 In practice, the ‘‘midnight period’’ refers to the roughly 

two-month period between the presidential general election and 

subsequent inauguration day.2 For example, President Barack 

Obama’s administration published 842 final rules (179 declared 

‘‘significant’’) from November 9, 2016 (the day after the election) to 

January 19, 2017 (the day before the inauguration), compared to 

604 (79) for the same period a year prior, and 608 (51) for the comparable period after President Obama’s re-election in 2012.3 Observers first identified this pattern going back to at least the transition from President Jimmy Carter to President Ronald Reagan 

(1980–81), and in transitions since,4 though it was not until 2001 

that a scholar first formally tested the hypothesis that ‘‘lame duck’’ 

administrations increase their regulatory output.5

One concern about midnight rulemaking is that the quality of 

analysis used to structure and justify the regulation suffers. A 2013 

study examined regulations issued around the Bush-Obama transition and concluded this was indeed the case, and moreover that the 

degree to which quality suffers may be associated with the outgoing President’s policy priorities.6 The implication is that midnight rules can have a lasting effect on policy without the necessary evidence to justify the rules, resulting in a suboptimal policy 

outcome. 

A related but distinct concern is that midnight regulations can 

lead to a stress on resources for the Office of Information and Regulatory Affairs—tasked with centralized review of Executive 

Branch agency rules—which shortens review times and decreases 

accountability.7 Further, an administration free of electoral or Congressional constraints ‘‘can pursue regulatory policies that, in other 

circumstances, might have invited retaliation.’’ 8 This could be characterized as ‘‘undemocratic’’ if the policies themselves are contrary 


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9 Id. Also consider that regulations (including midnight regulations), once issued, tend to be 

highly persistent. E.g. Jason M. Loring & Liam R. Roth, Empirical Study: After Midnight: The 

Durability of the ‘‘Midnight’’ Regulations Passed by the Two Previous Outgoing Administrations, 

40 Wake Forest L. Rev. 1441 (2005). 10See Subtitle E (‘‘Congressional Review’’) of the Small Business Regulatory Enforcement 

Fairness Act of 1996 § 251, 5 U.S.C. §§ 801–808 (enacted as 104 P.L. 104–121, codified at 5 

U.S.C. §§ 801–808) (the congressional disapproval procedure is contained in Section 802). 11 5 U.S.C. § 801(d) (2012). 12Letter from Sen. Ron Johnson, Chairman, S. Comm. on Homeland Sec. & Governmental Affairs, to Dr. Howard Shelanski, Administrator, Office of Info. & Regulatory Affairs, Dec. 7, 2016. 13See letter from Sen. Ron Johnson, Chairman, S. Comm. on Homeland Sec. & Governmental 

Affairs, and Sen. James Lankford, to Sally Jewell, Secretary, Dep’t. of Int., Dec. 13, 2016; 

Shelanski, supra note 11; see also letter from Sen. Ron Johnson, Chairman, S. Comm. on Homeland Sec. & Governmental Affairs, to Vice President-Elect Mike Pence, Dec. 12, 2016. 

to the preferences of the electorate as expressed via the prior election.9

The CRA set up a rolling window during which Congress can review and disapprove regulations submitted by the Executive 

Branch.10 If a regulatory agency submits a rule to a Congress 

which ends before the full review window elapses, then these procedures provide the next Congress a new period in which to review 

and disapprove of the rule.11 In practice, treating the rule as if it 

is resubmitted allows Congress to review midnight rules issued by 

an outgoing administration, as the end of a presidential term typically occurs within a few weeks of Congress’s sine die adjournment. 

The CRA’s disapproval mechanism requires Congress to introduce, pass, and the president to sign a unique joint resolution for 

every rule. The Midnight Rules Relief Act of 2017 would amend the 

CRA to allow for disapproval of more than one rule within a single 

joint resolution under a particular circumstance. For rules promulgated at the end of a Congressional session—those rules that effectively must be resubmitted to Congress—that occurs within a president’s final year of a term, the Midnight Rules Relief Act of 2017 

would provide the option for Congress to group multiple rules for 

consideration en bloc and outlines the specific form such a resolution must take. 

Under this proposed legislation, a new Congress is afforded an 

expedited means to prevent persistent and potentially costly policies via regulations pursued by an outgoing administration in its 

waning days. By grouping multiple rules together, it reduces the 

time and resources that Congress must spend, to reverse the prior 

administration’s last minute regulatory policy grab. Moreover, the 

legislation makes it more likely Congress can prevent avoidable 

fixed costs of compliance with such regulations. It does not, however, change the overall review and disapproval procedure or application for rules that do not fall within this narrow set of circumstances. 

At the end of the Obama Administration, Chairman Ron Johnson 

sent letters to both outgoing and incoming officials urging a concerted effort to prevent ‘‘a last-minute deluge to promulgate socalled ‘midnight rules.’ ’’ 12 This effort focused on both specific 

rules 13 as well as the overall midnight rules phenomenon. Nevertheless, the outgoing administration persisted in pushing through 

a significant increase in last-minute rulemaking, resulting in 

Chairman Johnson introducing the Midnight Rule Relief Act of 

2017 as a means to address future attempts to do the same. 


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III. LEGISLATIVE HISTORY

Chairman Johnson (R–WI) introduced S. 34 on January 5, 2017. 

The bill was referred to the Committee on Homeland Security and 

Governmental Affairs. Senators Rand Paul (R–KY), Michael B. 

Enzi (R–WY), Marco Rubio (R–FL), Steve Daines (R–MT), and Roy 

Blunt (R–MO) later joined as co-sponsors of the bill. The Committee considered S. 34 at a May 17, 2017 business meeting. 

The Committee ordered S. 34 reported favorably on May 17, 

2017, by a roll call vote of 8 yeas to 6 nays. Senators voting in the 

affirmative were Johnson, McCain, Portman, Paul, Lankford, Enzi, 

Hoeven, and Daines. Senators voting in the negative were McCaskill, Tester, Heitkamp, Peters, Hassan, and Harris. For the record 

only, Senator Carper voted nay by proxy. 

IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title 

This section provides the bill’s short title, the ‘‘Midnight Rules 

Relief Act of 2017.’’ 

Section 2. En bloc consideration of resolutions of disapproval pertaining to ‘‘Midnight Rules’’ 

Paragraph (a) amends Section 801(d) of the CRA so that of the 

rules eligible for disapproval under the CRA, those ‘‘submitted during the final year of a President’s term’’ can be considered for disapproval in a single resolution. 

Paragraph (b) amends Section 802(a) to describe how the text of 

such a resolution must be structured. 

V. EVALUATION OF REGULATORY IMPACT

Pursuant to the requirements of paragraph 11(b) of rule XXVI of 

the Standing Rules of the Senate, the Committee has considered 

the regulatory impact of this bill and determined that the bill will 

have no regulatory impact within the meaning of the rules. The 

Committee agrees with the Congressional Budget Office’s statement that the bill contains no intergovernmental or private-sector 

mandates as defined in the Unfunded Mandates Reform Act 

(UMRA) and would impose no costs on state, local, or tribal governments. 

VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

MAY 30, 2017. 

Hon. RON JOHNSON, Chairman, Committee on Homeland Security and Governmental Affairs, U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 34, the Midnight Rules Relief Act of 2017. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

KEITH HALL. 

Enclosure. 


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S. 34—Midnight Rules Relief Act of 2017 

S. 34 would amend the Congressional Review Act (CRA) to allow 

en bloc disapproval of multiple regulations issued during a President’s final year in office. Under the CRA, the Congress can only 

disapprove one regulation at a time. 

Although the bill could affect how the Congress uses the CRA 

and thus affect which regulations are disapproved, enacting the bill 

would have no effect on the budget. Regulations can affect the cost 

of entitlement programs as well as the collection of fees, and 

changes to those regulations could either increase or decrease federal spending or revenues. However, any budgetary effects would 

result from future legislation that disapproved the regulations. 

Enacting the legislation would not affect direct spending and revenues; therefore, pay-as-you-go procedures apply. CBO estimates 

that enacting S. 34 would not increase net direct spending or onbudget deficits in any of the four consecutive 10-year periods beginning in 2028. 

S. 34 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act. 

The CBO staff contact for this estimate is Matthew Pickford. The 

estimate was approved by H. Samuel Papenfuss, Deputy Assistant 

Director for Budget Analysis. 


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1 5 U.S.C. §§ 801–808. 

2 Administrative Office of the United States, Administrative Conference Recommendation 

2012–2; Midnight Rules 1–2 (June 14, 2012). 3Public Citizen, Shining a Light on the ‘‘Midnight Rule’’ Boogeyman (July 18, 2016). 4 Congressional Research Service, Agency Final Rules Submitted on or after June 13, 2016, 

May be Subject to Disapproval by the 115th Congress (IN10437) (2016). 

VII. MINORITY VIEWS

MINORITY VIEWS OF SENATORS CLAIRE MCCASKILL, 

THOMAS R. CARPER, AND MAGGIE HASSAN 

The Congressional Review Act (CRA),1 lays out the process by 

which Congress may disapprove an executive agency rule finalized 

within the last 60 legislative days of the House or Senate session 

during the final year of an Administration. Under current law, a 

joint resolution for each rule must be considered separately. S. 34 

amends section 801(d) of the CRA to allow Congress to consider a 

joint resolution to disapprove an unlimited number of regulations 

all at the same time. 

This bill is a solution in search of a problem and is built on the 

misguided premise that the majority of rules promulgated at the 

end of an Administration lack the rigorous analysis and review 

that is required in the regulatory process. To the contrary, most 

rules finalized in the last months of an Administration have gone 

through rigorous review and taken years to move through the regulatory process. The nonpartisan Administrative Conference of the 

United States (ACUS) found that ‘‘a dispassionate look at midnight 

rules issue by past Administrations of both political parties reveals 

that most were under active consideration long before the November election’’ and that many others were routine rules such as ‘‘finishing tasks that were initiated before the Presidential transition 

period or the result of deadlines outside of the agency’s control 

(such as year-end statutory or court-ordered deadlines).’’ 2 In fact, 

a report last year found that rules finalized during a transition period were usually proposed several years prior to their adoption.3

While the committee report asserts that the ‘‘midnight period’’ 

refers to a two month period between the general election and the 

subsequent inauguration, we would note that 60 legislative days 

can in fact be many months. For example, during the most recent 

transition, 60 legislative days captured all regulations finalized in 

the last 6 months of the Obama Administration.4 This bill would 

institutionalize one party’s ability to remove the last 6 months of 

the other party’s policies without giving proper consideration to 

each policy or giving Members the ability to weigh the merits of 

each rule included in the resolution. 

There is no good policy rationale for Congress to take a single 

vote on a potentially wide variety of rules affecting a broad range 

of potentially unrelated issues. For example, if this bill had applied 

to CRA votes taken this year, Senators could have been forced to 


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5 Congressional Research Service, The Congressional Review Act (CRA) (IF10023) (2016). 6See https://www.senate.gov/legislative/LIS/rolllcallllists/votelmenul115l1.htm. 7 5 U.S.C. § 801(b)(2). 

8 Administrative Office of the United States, Administrative Conference Recommendation 

2012–2; Midnight Rules 1–2 (June 14, 2012). 

take a single vote on rules affecting a Securities and Exchange 

Commission rule relating to disclosure of payments by resource extraction issuers and a Department of Labor rule relating to drug 

testing of unemployment compensation applicants. Members of 

Congress deserve the right to take separate votes on issues this 

disparate and unrelated. If this process is to be taken seriously, 

Congress should have a robust debate and a separate vote on each 

rule they wish to reconsider. 

While the CRA had previously only been used successfully one 

time to overturn a rule,5 this year it was successfully used to overturn 14 rules issued in the last months of the previous Administration, many with votes largely along party lines.6 The lasting impact 

of overturning rules with the CRA, which would be amplified by 

the expansion proposed in this bill, is that agencies are prohibited 

from ever issuing replacement regulations that are substantially 

the same as the rule that was invalidated, absent additional Congressional action.7

Rather than working to refine rules with which one party disagrees, the current CRA serves as a blunt tool that a majority 

party can use to permanently invalidate policies of a previous Administration absent further Congressional action. This bill exacerbates the limitations of the CRA by allowing one vote to essentially 

erase any or all of the executive actions taken in last 6 months of 

a President’s term. While this change would undoubtedly simplify 

the CRA process for Congress at the start of a new President’s 

term, it does so by ensuring less consideration is given to each rule 

and by inserting more partisanship into a process that is already 

highly partisan. 

In their recommendation, ACUS advised that reforms to target 

rules late in a President’s term ‘‘should be aimed as precisely as 

possible at the activities that raise the greatest causes for concern’’ 

and at rules where there appears to be ‘‘political illegitimacy’’ or 

where rules ‘‘appear to be rushed through the regulatory process.’’ 8

This bill is anything but the precise tool ACUS suggests to target 

rules that raise real concerns. For these reasons, we urge our colleagues to join us in opposition. 


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VIII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by S. 34 as reported are shown as follows (existing law proposed to be omitted 

is enclosed in brackets, new matter is printed in italic, and existing 

law in which no change is proposed is shown in roman): 

UNITED STATES CODE 

* * * * * * * 

TITLE 5—GOVERNMENT ORGANIZATION AND 

EMPLOYEES 

PART I—THE AGENCIES GENERALLY 

* * * * * * * 

CHAPTER 8—CONGRESSIONAL REVIEW OF AGENCY 

RULEMAKING 

* * * * * * * 

SEC. 801. CONGRESSIONAL REVIEW. 

(a) * * * 

* * * * * * * 

(d) * * * 

(1) * * * 

* * * * * * * 

(4) In applying section 802 to rules described under paragraph (1), a joint resolution of disapproval may contain one or 

more such rules if described if the report under subsection 

(a)(1)(A) for each such rule was submitted during the final year 

of a President’s term. 

SEC. 802. CONGRESSIONAL DISAPPROVAL PROCEDURE. 

(a) For purposes of this section, the term ‘‘joint resolution’’ means 

only a joint resolution introduced in the period beginning on the 

date on which the report referred to in section 801(a)(1)(A) is received by Congress and ending 60 days thereafter (excluding days 

either House of Congress is adjourned for more than 3 days during 

a session of Congress), the matter after the resolving clause of 

which is (except as otherwise provided in this subsection) as follows: 

‘‘That Congress disapproves the rule submitted by the l relating 

to l, and such rule shall have no force or effect.’’ (The blank 

spaces being appropriately filled in). In the case of a joint resolution 

under section 801(d)(4), the matter after the resolving clause of such 

resolution shall be as follows: ‘‘That Congress disapproves the following rules: the rule submitted by the l relating to l; and the 

rule submitted by the l relating to l. Such rules shall have no 

force or effect.’’ (The blank spaces being appropriately filled in and 


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additional clauses describing additional rules to be included as necessary). 

Æ 


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