Despite his party’s defeat at the polls last week, President Bush still wields enormous regulatory power. The way he manages this power—and, in particular, the extent to which he keeps his promise to avoid “midnight” regulations during his last weeks in office—can help him set a vital precedent for outgoing administrations in the future.
Some background: Ever since the vast expansion of government New Deal era of the 1930s ushered in the modern regulatory state, presidents from both parties on their way out of office have engaged in a flurry of last-minute regulating.
Presidents George H.W. Bush, Clinton, Carter, and Ford all issued “midnight” rules. Earlier this year, President Bush promised to end this practice when White House Chief of Staff Josh Bolten ordered agencies to complete the bulk of their non-urgent rulemaking work by Nov. 1. Now President Bush has to follow through.
And following through would have vital impacts on Americans’ lives because Congress has passed dozens of laws—many of them on economic and environmental topics–specifying broad goals and directing bureaucrats to figure out ways to achieve them.
For example, how public companies keep their books, the manner in which banks operate, the permissible uses of public land (and much private land as well) are all determined via the federal regulatory process.
Current pending regulations would to impose massive new banking system mandates in the name of limiting Internet gambling, modify the rules for making decisions about endangered species, create a massive new offshore marine sanctuary, and change the standards that govern mountaintop removal coal mining.
Some of these new regulations, perhaps all of them, might represent good public policy and a few may technically conform to the November 1 deadline. But all reflect things that Bush has had as much as eight years to consider.
Even if they represent good public policy, imposing these regulations now won’t change much. If he disagrees with them, the new regulations will do little but to create headaches for President-elect Barack Obama.
With enough work, a new administration can always undo the previous administration’s regulations. Indeed, on his first day in office in 2001 Bush issued an executive order suspending hundreds of last minute Clinton administration rules and then spent a good part of his first year reviewing and revising them.
Clinton’s last-minute rules—and those issued by some of his predecessors—simply offered an easy “out” to presidents who want to take unpopular, controversial actions. They also made bad regulations worse because an administration on its way out always sheds talented people and operates with less public scrutiny, as the nation focuses on the selection of a new president.
Thus, President Bush took a bold, principled stand when he ordered the administration to finish the bulk of its regulatory work before the November election. That’s why an improbable coalition of groups including the Competitive Enterprise Institute, the National Wildlife Foundation, the Environmental Defense Fund, and FreedomWorks have all signed a joint letter to oppose midnight rulemaking.
Because almost three weeks elapse between the time regulations are written and their formal announcement, Americans won’t really know until the end of the month if the Bush administration actually intends to keep its promise.
Some agencies—most prominently the Environmental Protection Agency and the Treasury Department—have already begun the process of making rules that would violate of the Bush administration’s promise. The White House needs to tell them to stop, remind them of the promises that Bush has made, and set a new standard of regulatory behavior for future administrations.
-The Text of the Joint Letter and a collation website can be found at www.nomidnightregs.org.
Eli Lehrer is a senior fellow at the Competitive Enterprise Institute.
