Election 2008

White House, Eric Draper/AP

Bush Administration Passing ‘Midnight Regulations’

November 20, 2008 06:22 PM
by Denis Cummings
The Bush administration is busy passing regulations before midnight on Nov. 20, the latest that a regulation can go into effect before Inauguration Day.

Wave of Regulations Expected Before Midnight

President George W. Bush and his administration have until midnight Nov. 20 to pass major regulations through federal agencies that will be difficult for President-elect Barack Obama to overturn when he takes office. The Bush administration has already passed regulation changes pertaining to oil shale development, the working hours of truckers, and employee time off in recent weeks.

President Bush is in power until the Jan. 20 Inauguration Day and his administration may pass rules and regulations until then. However, 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. Once he is president, Barack Obama can easily overturn any regulation that has yet to take effect, giving the Bush administration until Nov. 20 to pass regulations that have a chance to remain in place under the Obama presidency.

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.”
ProPublica, a nonprofit devoted to investigative journalism, is tracking the regulations currently being pushed through, with status updates on each.

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 ten 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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