Bush's Midnight Rule Campaign Comes to a Close
by Matthew Madia, 1/13/2009
President George W. Bush and senior administration officials appear to have concluded their midnight regulations campaign, leaving the incoming Obama administration with a host of new rules it may not agree with. In the past two months, the Bush administration has finalized at least 20 controversial midnight regulations affecting everything from the environment to health care and worker rights.
The regulations are scheduled to take effect before President-elect Barack Obama takes office. Some will take effect on Jan. 20 — the day of Obama's swearing in. Regulations are considered final upon publication in the Federal Register, but generally, federal law requires agencies wait at least 30 or 60 days before making the rules effective.
The Bush administration's shrewd timing handcuffs the Obama administration from repealing any Bush-era regulations in effect. Had Bush waited until January to finalize those controversial regulations — thereby missing the opportunity to close the 30- or 60-day effective date window during his term — the Obama administration would have had an opportunity to delay the rules' effective dates and/or reevaluate the content of the regulations. (The Bush administration employed such a strategy upon taking office, delaying dozens of controversial Clinton-era regulations.)
Obama transition officials have shown interest in tackling Bush's midnight regulations. Incoming White House counsel Gregory B. Craig told The New York Times the Obama administration "will take appropriate steps to address any concerns in a timely manner."
But because Bush has limited the incoming administration's options, congressional action will likely be necessary to spur the reconsideration or reversal of the Bush regulations. Congress could disapprove regulations on a case-by-case basis using the Congressional Review Act. Congress could also use legislation to explicitly authorize the Obama administration to act on Bush-era regulations without having to reenter the often cumbersome rulemaking process.
Rep. Jerrod Nadler (D-NY) introduced Jan. 6 the Midnight Rule Act (H.R. 34), which would require incoming cabinet officials to approve Bush-era regulations before they are allowed to take effect. Other congressional members are mulling their options for addressing individual regulations.
The Democratic leadership has pledged to take its cues from the incoming Obama administration. Spokespersons for the offices of Senate Majority Leader Harry Reid (D-NV) and Speaker of the House Nancy Pelosi (D-CA) have said they are "waiting for guidance from the administration before adopting a specific strategy," according to The New York Times.
Reid and 16 co-sponsors, all Democrats, have introduced a "Sense of Congress" bill (S. 8), that, if adopted, would express Congress's displeasure with Bush's midnight regulation campaign.
Public interest groups are challenging the administration on a number of midnight regulations. A group of park conservation advocates are suing the Department of the Interior over its Dec. 10, 2008, rule, which lifts the 25-year-old ban on carrying loaded guns in national parks. According to a statement, "The groups are arguing that the rule is unlawful because the Department of the Interior did not conduct an analysis of the rule's environmental effects."
Environmental groups are suing Interior over another rule that puts endangered species at greater risk. The rule changes the implementation of the Endangered Species Act, which requires scientific consultation for decisions that could impact species. "The Bush rule allows federal agencies involved with projects such as new highways, bridges, dams and airports to ignore the views of wildlife experts and instead internally determine the threat level posed to imperiled wildlife," the groups said in a statement. "These agencies not only lack the expertise to make wildlife decisions, but often they have a built-in conflict of interest."
Highway safety advocates have filed a "petition for reconsideration" with the Department of Transportation over a rule that allows truck drivers to spend up to 11 consecutive hours on the road. The rule also shortens mandatory rest times between work weeks. The groups are asking that an older 10-hour limit be reinstated, citing studies that show the risk of a crash increases during long runs like those allowed under the new rule.
One of the most controversial midnight regulations gives health care providers the right to refuse to provide women with access to or information about reproductive health services, if a provider objects on moral or religious grounds. The rule requires providers receiving federal funding to certify in writing that they are complying with laws intended to preserve an individual's right of conscience. On its face, it seems to target abortion and sterilization services, but critics say the Department of Health and Human Services (HHS) wrote the rule so broadly that it could also reduce access to information about and the dispensing of contraception.
The HHS provider conscience regulation and the endangered species rule were among at least six midnight regulations finalized the week of Dec. 15, 2008 — the final week for agencies to make certain their rules would take effect by the close of the Bush administration.
- The U.S. Environmental Protection Agency (EPA) published two rules: one exempting farms from reporting to the government the air emissions generated by animal waste, and another reclassifying thousands of tons of hazardous waste, allowing it to be burned as fuel.
- The Department of Labor announced revisions to its guestworker program that weaken already modest protections for farmworkers.
- The Department of Transportation finalized a regulation that could lead to an increase in the privatization of public toll roads by forcing states to accept bids from private companies.
The provider conscience rule and both EPA rules are scheduled to take effect Jan. 20.
HHS published another controversial regulation on Dec. 24, 2008. The administration says the regulation, which requires government grantees to pledge opposition to prostitution and sex trafficking, will take effect Jan. 20, just 27 days after being finalized. HHS gave no defense for its decision to shorten the effective date window, ignoring the requirements of the Administrative Procedure Act (APA) that call for a minimum 30-day waiting period before a rule becomes effective.
Under the APA, agencies may only dispense with the 30-day requirement if they can show "good cause" for doing so. Similarly, the Obama administration could suspend any of Bush's midnight regulations if it cites good cause. However, both the executive branch and courts generally apply the good cause exemption conservatively, so a broad application of the provision is unlikely.