Election 2008

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White House, Eric Draper/AP

Democrats Pledge to Reverse Last-Minute Bush Rulings

December 01, 2008 11:32 AM
by findingDulcinea Staff
Democratic members of Congress insist they will work to reverse so-called “midnight regulations” instituted by the outgoing Bush administration.

“We Will Do Whatever It Takes”

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Midnight regulations” pushed through before Nov. 21 by the Bush administration are likely to face stiff opposition and moves for their reversal by Congressional Democrats.

Chair of the Senate Environment and Public Works Committee, Sen. Barbara Boxer, D-Calif., was quoted as saying by UPI, “We will do whatever it takes” to oppose President George W. Bush’s last-minute legislation, including fast-track resolutions during the first few months of the 111th Congress, set to begin on Jan. 6.

The Bush administration’s last-minute measures may be worth as much as $1.9 billion, according to The Washington Post.

President Bush and his administration had until 12:00 a.m. Nov. 21 to pass major regulations through federal agencies that will be difficult for President-elect Barack Obama to overturn when he takes office. In the weeks leading up to the deadline, the Bush administration passed regulation changes pertaining to oil shale development, the working hours of truckers, and employee time off in recent weeks.

Bush has the power to push through new rules until Jan. 20, Inauguration Day. But it takes 60 days for major regulations—defined as regulations that will have an estimated effect on the economy of over $100 million—to go into effect. This is why the Nov. 21 deadline was crucial; any regulation approved after this date will not take effect until the Obama administration is in power, and will thus be easier for the new administration to strike down.

Many of the regulations passed and in the process of being passed are pro-industry, giving companies greater freedom on environmental and labor issues. “Most of them relax existing requirements,” says Matt Madia of OMB Watch, a nonprofit organization dedicated to government transparency. “They make it easier for industries to pollute or deny a worker medical leaves.”

Many of the midnight regulations stand to benefit the energy sector. The oil shale ruling lessens green restrictions on developing and extracting from fields in the western United States. The ruling came in spite of opposition from Colorado members of Congress and Bill Ritter, the state’s Democratic governor.

Ritter said on Nov. 17 that the measure was “not just premature, it’s hasty and I would even argue reckless,” Ritter was quoted as saying by The Washington Post. Other last-minute regulations in the pipeline include a measure that would thwart Congress’ power to curb mining, hydrocarbons extraction and logging activities on government-controlled lands, as well as a law that would grant federal agencies the right to bypass scientific evaluation as stipulated under the Endangered Species Act.
The Obama administration will have several options to overturn the regulations, but none are simple. It could try to pass new regulations voiding the Bush regulations, but the rule-making process takes years. It could also file lawsuits to undo the regulations, but the legal process is long and often unpredictable.

There is also the option to use the Congressional Review Act, a somewhat obscure piece of legislation passed in 1996 that allows Congress to revoke the regulations. It has only been used once in 12 years, and would likely be reserved for a “rule that is politically unpopular and reinforces the message that the new Congress and the President want to send,” said Reece Rushing of the liberal think tank Center for American Progress to ProPublica.

“It would seem when you have a Congress that is controlled by the Democrats and a president that’s a Democrat, that’s a better option than virtually any of the others,” said Gary Bass, executive director of OMB Watch, to NPR. “But that approach is almost like the Atomic Bomb because it would mean that no similar rule can be done.”

Background: Midnight regulations

The term “midnight regulation” was coined in 1980, when outgoing President Jimmy Carter spent the last 10 weeks of his presidency passing nearly 25,000 pages of regulations. “Since Jimmy Carter, every President has complained about midnight regulations,” writes Elizabeth Kolbert in The New Yorker, “and, four or eight years later, every President has issued them.”

President Bill Clinton passed the most regulations—more than 26,000 pages in total—but many were passed after Nov. 20, allowing Bush to suspend about a quarter of them. The Bush administration learned from Clinton’s mistake, and White House Chief of Staff Joshua Bolten issued a memo in May to federal agencies telling them to have all regulations ready by Nov. 1.

Reference: How regulations are passed

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