Overturning 'midnight' regulations presents challenges
Many steps taken by Bush were specifically designed to make last-minute rule changes difficult to reverse.
President George W. Bush ended his White House tenure by issuing a flurry of regulatory actions, many of which are considered questionable, if not offensive, by the left. While the Obama administration has already taken steps to freeze those rules still in the pipeline, the new president and Democratically-controlled Congress will have to decide how much time and effort they want to expend undoing what Bush has done and how they will go about rescinding rules they want to see wiped from the books.
At a press conference on Thursday afternoon at the Center for American Progress, Anne Joseph O'Connell, assistant professor of law at the University of California-Berkeley, presented a new report analyzing data on federal rule-making between 1983 and 2008, focusing on transition periods. The study indicates that the spike in regulations coming in the final year, and particularly the last several months, of the Bush administration is typical of most outgoing presidents. That said, O'Connell noted that some steps taken by Bush's team were "unprecedented," in that they were designed specifically to make his regulations harder to overturn.
Also at the event, a report from CAP's Reece Rushing and Rick Melberth and Matt Madia of OMB Watch was released, detailing some of Bush's "midnight" regulations and suggesting actions the Obama administration can take to block or undo them.
O'Connell, Reese, OMB Watch Executive Director Gary Bass, and Sally Katzen of the Obama-Biden Transition Project's Agency Review Working Group were on hand to discuss the results of both reports. They explained that rules proposed by the Bush administration but not yet in place for 60 days can be overruled by the Obama team. In fact, on his first day in office, Obama's White House Chief of Staff Rahm Emanuel issued a memo effectively establishing a "regulatory moratorium" so that all rules coming down the pipe could be suspended and reviewed by the new administration.
Regulations finalized before Jan. 20, however, cannot be done away "with the stroke of a pen." Either an entirely new rule must be made -- a process that takes several months -- Congress must intervene to overturn the rule, or it must be suspended through litigation. All of these options will take time and resources to complete and, at a time when Obama and congressional Democrats already face huge threats on the domestic and international fronts, both are in short supply.
Check out the blog Lost in Transition, a joint effort of Government Executive and National Journal.