“Oftentimes these new rules are too controversial to have been adopted earlier and result in last minute giveaways to special interests or intentionally ties [sic] the hands of a newly elected president,” they wrote (PDF).
By Wednesday afternoon, White House Press Secretary Jay Carney told reporters asking about the request that the administration is already addressing regulatory concerns through its ongoing regulatory review for overly burdensome or duplicative regulatory requirements. However, that effort is limited to rules issued by previous administrations, according to an administration official.
The administration may not have much choice but to ignore such calls for regulatory restraint because the Patient Protection and Affordable Care Act—assuming it survives constitutional scrutiny by the Supreme Court—requires several key regulations around the post-election timeframe. For example, either preliminary or final rules could be ready after the election on guaranteed issue, community rating, essential benefits and actuarial value provisions of the law.
The administration could argue that the law's tight timeframes may not give it much flexibility to hold off on the issuance of such regulations until the new Congress returns. On the other hand, the issuance of complex rules implementing the healthcare law during a congressional recess merely would continue the administration's well-established practice of the last two years.
At the end of the day, McConnell and Boehner may have little reason to fear midnight regulations. That's because many members of Congress are already discussing the likelihood that they will return soon after the polls close for an extensive lame duck session to resolve numerous high-profile issues, such as (yet another) looming Medicare physician reimbursement cut.