’Round Midnight

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The Center for American Progress (CAP) released a report last week discussing outgoing President Bush’s “midnight regulations” and how the organization hopes President Barack Obama will respond. All presidents in recent years have issued notices of proposed rulemaking as their terms have neared an end, and incoming presidents always try to reverse at least some of the proposed regulations.

According to the CAP report, “President George W. Bush took unprecedented steps to make his last-year regulations harder to overturn.” The report goes further into detail: “In May, 2008, White House Chief of Staff Joshua Bolten informed executive agencies that they should not propose any new rules after June 1 and should finish rules by November 1. The Bolten directive was, it seems, intended to block the [incoming] president from suspending the effective dates of Bush rules, as the Bush administration did to the Clinton administration.”

The authors of the report were clearly frustrated by the efforts of the Bush administration to ensure that its policies were put into effect. Reece Rushing of CAP complained that “perhaps no other administration has been so driven to dismantle regulation.” His report, entitled “After Midnight: The Bush legacy of deregulation and what Obama can do,” calls for blanket opposition to Bush regulations. Rushing’s appendix includes rules proposed as far back as May, 2008.

One of Rushing’s colleagues, Sally Katzen, in response to suggestions that litigation should be hastily pursued against Bush “midnight regulations,” admitted that “we’re better off with half a glass than nothing at all,” suggesting that many of the Bush regulations which the authors find offensive and irresponsible may still be better than nothing.

This is not the case for all of the regulations, however. One specific rule, which Katzen called “objectionable,” deals with access to reproductive health services. It is described as a rule which “requires health care providers to certify they will allow their employees to withhold services on the basis of religious or moral grounds or risk losing federal funding.”

Regarding this same regulation, Anne Joseph O’Connell, an assistant professor of law at the University of California-Berkeley, explained that this is one example where the default—returning to how things were before this regulation was conceived—“is likely preferred by the Obama administration.”

The authors of the report not only questioned the motives of Bush’s proposed regulations, but also their legality. “Now remember, the President of the United States has an obligation written in the Constitution to faithfully execute the law,” says Sally Katzen. “If, therefore, there is something as to which there is significant, serious, real question about the legality, then the agencies should not move forward with that, because that would be a violation of the Constitutional obligation of the President.”

Last week White House Chief of Staff Rahm Emanuel issued a memo putting Bush’s midnight regulations on hold. Katzen and Rushing praised this as movement in the right direction and proposed further action. Discussed in the CAP report “After Midnight,” among the options for combating questionable regulations are:

Suspension of effective dates. “Final rules generally take effect 30 or 60 days after they are published in the Federal Register, depending on their significance. Rules not in effect by the inauguration may have their effective dates suspended.”

Rulemaking. “President Obama can direct executive agencies to undo final Bush regulations.” However, agencies “must conduct entirely new rulemakings, which are subject to legal requirements.”

Court action. “An agency must observe its rulemaking requirements…A challenge can be won if a court finds that there are any procedural or substantive violations of these requirements.”

The report also mentions several processes through which Congress can reverse Bush regulations. The report stresses the need for quick action, however, but with the economic crisis in the national spotlight and cabinet confirmations still underway, Bush regulations might not be gone as quickly as some hope.

Daniel Allen is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.