By Andrew Cohen
It may not be what Democrats want to hear as Inauguration Day approaches, but some sharp regulatory maneuvering could extend President Bush’s agenda long after January 20.
Administrative law expert Anne Joseph O’Connell, an assistant professor at Berkeley Law, says the Bush Administration “has been brilliant in controlling public policy through its regulatory strategy, in particular the midnight regulation activity.” The phrase “midnight regulations,” which stems from John Adams appointing 16 judges in the last hours of his presidency, describes the final sprint to effect policy change before leaving office.
Earlier this year, White House Chief of Staff Joshua Bolten instructed federal agencies to propose any new rule by June 1, and to issue it by November 1. Significant rules—those with more than a $100 million impact on the economy—can’t take effect until 60 days from the date they’re issued. That means major regulations issued before November 20 will be harder for President-elect Obama to erase.
“Significant rules are easier to undo if they’re issued within 60 days of the new administration coming in,” says O’Connell, recently interviewed on the subject by National Public Radio. “On January 20, the new Administration just sends a memo to agencies freezing rules that haven’t yet taken effect. All administrations have been aware of the advantage of finishing their regulations earlier, but until now none had taken such proactive, formal steps to complete them.”
Obama will therefore encounter several Bush regulations, if completed by inauguration, that don’t sit well with his administration. One would give workers in federal-funded institutions wide discretion to cite moral objections to reproductive issues like contraceptives or abortion—and to not assist in performing related work. Others would eliminate environmental review from decisions affecting fisheries, and make it harder to regulate on-the-job risks.
Full Steam Ahead
Like most federal agency regulations, midnight regulations don’t require congressional approval. In 2001, Congress passed 24 major statutes and 112 other public laws; by contrast, federal agencies, cabinet departments, and the Executive Office of the President issued 70 significant rules and 3,383 other rules.
Although most regulations are subject to public input, O’Connell says the Bush Administration has raced through several far-reaching measures. Exhibit A: The U.S. Department of the Interior announced it would take just four days to review 200,000 public comments on endangered-species rules—which would have required staff members to read through seven per minute.
“The more pressed the agency is in a political transition, the more likely statutory procedural requirements are to be violated,” O’Connell wrote in a recent Virginia Law Review article entitled “Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State.” Her article further noted that “an agency may neglect a requirement entirely.”
President Carter published more than 10,000 pages of new rules during his last month in office, on everything from crash tests for cars to access to medical records. President Clinton even issued a rule that set new requirements for ergonomic work spaces. Why this mad dash to jam through policy at the 11th hour?
“Outgoing presidents want to extend their administration’s reach,” says O’Connell, whose article won last year’s Association of American Law Schools’ Scholarly Papers Competition for faculty with fewer than five years of law teaching. “In their final months, we see an attempt to lock in often controversial policy decisions. Even if some can be undone, the effort a new administration has to put forth to undo them can slow momentum for starting on its own agenda.”
The Democrats’ Response
Using the regulatory process to overturn Bush Administration rules finalized before November 20 would require new investigation and comment periods—which could take years to finish. Instead, House Democrats may employ the Congressional Review Act (CRA).
Under the CRA, a regulation issued within 60 legislative days of Congress adjourning isn’t considered legally finalized until the 15th legislative day of the new session—sometime in February. Congress then has 60 days to review and reverse it with a joint resolution that can’t be filibustered in the Senate.
“Because of technicalities involving the legislative adjournment date, it’s possible that any regulation finalized from early June through November 20 could be overturned by the CRA,” O’Connell says. “But by the time you do that, the regulation could already be in effect for weeks or months. Also, with this financial crisis and other pressing concerns, Obama and Congress have many other legislative priorities.”
Whatever tactic the Democrats use, O’Connell says midnight regulations—warts and all—will remain a presidential tradition: “I think we all acknowledge some problems with legitimacy and efficiency. On the other hand, it’s not clear what the solution is. Some have proposed barring any non-emergency regulations after November 1, but then midnight just becomes 11 p.m.”