Sister Strike: Undoing Bush's Midnight Regulations

From The Strike: I want to welcome our newest Guest Blogger, Sister Strike. Sister Strike is a 2nd year legal student and an emerging expert on topics ranging from constitutional law to voting rights cases. She also happens to be my sister. Papa and Mama Strike would be proud! Please let Sister Strike know you appreciate her contribution by offering your comments!


So after a few weeks of some intense bullying from my brother, the Strike, I'm finally writing my first post. I'm supposed to provide the "legal" perspective here at Strike the Last Word, which is somewhat hilarious given that I'm a second year law student with very little actual legal experience. But I do what I'm told...especially when the directions come from my brother. So here goes. Today, I'm going to be writing about midnight regulations, something I'm currently talking about in my Administrative Law class.

Just to make sure I give credit where credit is due (I'm a future lawyer, and therefore pretty wary of being accused of plagiarism or stealing anyone's ideas), most of this post comes from testimony given last week (Feb. 4) in front of the Subcommittee on Commercial and Administrative Law of the House Judiciary Committee by Curtis Copeland of the Congressional Research Service, Gary Bass, Executive Director of OMB Watch, a non-profit, Veronique de Rugy, a Senior Research Fellow at the Mercatus Center at George Mason University, and Michael Abramowicz, a Professor at George Washington University Law School.

There was a lot of talk about midnight regulations in November and December when the country was preparing itself for the end (finally!) of the Bush 43 presidency. The Bush administration, like pretty much every outgoing presidential administration in recent history, spent its final year ratcheting up its regulatory activity, trying to push administrative regulations through the rulemaking process so that they would be in effect by the time the new administration took over.

For agency rules to be legally binding, they must go through a period of public notice and comment, a process that can often take a long time. To make sure that a rule is officially in place by the new president's inauguration, agencies must have finished the notice and comment process and published their final rules in the Federal Register at least 30 days earlier (60 days for "major" rules). Once a rule is published and in effect, the only way for the new administration to reverse it is to re-do the rulemaking, which means drafting the amended rule, submitting it for public comment, responding to the comments, etc. This is a very lengthy and resource-intensive process, and could mean that the agency can't devote its time and energy to focusing on pursuing the President's own policy goals.

At the end of the Clinton presidency, a lot of the outgoing administration's rules were not properly promulgated in time, so when Bush's people took over they had a much easier time erasing them. Not wanting to make the same mistake, in May 2008, Joshua Bolten, the White House Chief of Staff, issued a memorandum to the heads of agencies instructing them to issue all final regulations by November 1, 2008. Despite this order, many agency rules did not make it completely through the process by that deadline, meaning that Obama's people won't have to do a complete rulemaking procedure to erase every midnight regulation from the Bush administration. Rules that haven't yet been published in final form in the Federal Register can simply be withheld from publication. Copeland gave a few examples of such rules in his testimony - a proposed DOJ rule that "some contend would make it easier for state and local police to collect, share, and retain sensitive information about Americans, even when no underlying crime is suspected," and an EPA rule regulating upgrades for anti-pollution equipment at older power plants that environmental groups claim would "weaken existing protections."

However, many very scary rules did make it through in time. According to Gary Bass, Bush's people did some very scary things to ensure that rules were successfully in place by January 20, including shortening the periods proposed rules were available for public comment (normally the N+C period is at least 60 days - one Dept. of Interior rule's period was shortened to 17 days) and shortening the period of review by the Office of Information and Regulatory Affairs (OIRA), which is a part of the OMB. A few examples of rules that were finalized within hours before the inauguration: an EPA rule "exempting factory farms from reporting air pollution emissions from animal waste," an HHS rule that will "likely limit women's access to health services by requiring health care providers to certify that they will allow their employees to withhold services on the basis of religious or moral grounds or risk losing federal funds," and a Dept. of Transportation rule allowing truck drivers "to drive up to 11 consecutive hours and shortening mandatory rest times."

So what can Obama (and his people) do? As mentioned above, for rules that have not yet been finalized, they can simply choose not to publish them. The administration has already done this - Rahm Emanuel issued a memorandum on Jan. 20 instructing agencies to "(1) not send proposed or final rules to the Office of the Federal Register, (2) withdraw from the Office rules that had not yet ben published in the Federal Register, and (3) 'consider' postponing for 60 days the effective dates of rules that had been published in the Federal Register but had not yet taken effect."

For rules that were properly promulgated and are already in effect, the experts' testimony suggested a number of options. While finalized rules do need to undergo notice and comment to be undone (or re-promulgated in a different form), the Administrative Procedure Act allows for a few exceptions from the full process. Unfortunately, it is often hard to convince courts that a rule falls within one of these exceptions. Another option is for agencies to issue amended or revised versions of the Bush rules as interim final rules while they undertake the full notice and comment procedure. Or agencies can issue informal, "interpretive" rules, basically saying that they will interpret the Bush regulation in a very different way. While this option sounds tempting, it isn't perfect - the interpretation must be reasonably based on the actual rule, so Obama's HHS couldn't interpret the rule cited above (regarding women's health) to say that employers don't actually have to allow their employees to withhold services on religious grounds.

The rules can also be invalidated by legislative or judicial action. For a court to get involved, an individual that has been harmed by the regulation must bring a challenge, and as we all know, court cases can often take a really, really long time. Congress also has a number of tools at its disposal. It can invalidate regs on a case-by-case basis using the Congressional Review Act (CRA), an "expedited, non-amendable, non-filibusterable procedure." This seems like a very tempting option, but in reality, Congress has only invalidated one rule using the CRA. Congress can also amend the legislation that authorized the agency action (Admin. law dorks - which I hope I'm cool enough to call myself by now - call these "organic statutes"). This would be subject to filibuster and amendments, though. Third, Congress can introduce legislation to address the issue more broadly. Recently, Rep. Jerrod Nadler introduced H.R. 34 which would "prevent midnight rules from going into effect until 90 days after a new agency head has been appointed." Finally, Congress could simply not appropriate the funds necessary to implement the new regulations. Another tempting option, but in reality a lot of these rules could easily function without any specific appropriations from Congress.

So, I realize that I may have just severely bored (and therefore scared away) many of the Strike's loyal readers, but hopefully there was some useful information there. The bottom line of all of this is that a lot of Bush's scary midnight regulations are here to stay, at least for the foreseeable future. Hopefully Obama can use his current popularity and momentum to get his agency and department heads cracking on overturning the rules as expeditiously as possible (if they issue the notices for public comment on the revised rules soon, maybe they'll be in effect by the end of his 1st term....) and convincing Congress to do what it can legislatively.