October 31, 2008

The Honorable George W. Bush
President of the United States
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Dear Mr. President:

We are a diverse coalition. All of our members share a deep concern
about America’s regulatory state. We want to deliver a simple message:
your administration should stick to its word and not issue any midnight
regulations.

Your own chief of staff, indeed, made your priorities clear in a
memo he sent on May 9, 2008: “Except in extraordinary circumstances,
regulations to be finalized in this Administration should be proposed
no later than June 1, 2008, and final regulations should be issued no
later than November 1, 2008.” You should follow your own policy.
Indeed, following your own policy seems to imply that regulations
received after June 1st and not yet finalized should be considered
suspect particularly when they revise rules already in force or relate
to laws passed before the 110th Congress.

The process of midnight rulemaking–something that Presidents of both
parties have done with relish–does great damage to the soundness of our
regulatory process and, indeed, our democracy. The Administrative
Procedure Act of 1946 establishes a regulatory process that includes
opportunity for public comment, review, and investigation of
regulations. Ultimately, however, enormous power rests with the
regulators themselves. The people, through their votes, provide a check
on unwise rulemaking. When you issue regulations as a departing
administration, you do so without this check and, in some cases,
against the will of the people.

On your own administration’s first day in office almost eight years
ago, you issued an executive order suspending the implementation of
your own predecessors’ last-minute regulations. Much of the rulemaking
during your first years in office involved revising, revisiting, and
repealing these “midnight” regulations in order to implement your
agenda. You should set a good example and avoid leaving your
predecessor with the type of headaches you inherited.

Your administration has already issued more regulations than any in
history. For eight years, you have been able to implement your agenda
on a wide array of issues. We acknowledge that bona fide emergency
rulemaking may become necessary at times but, true emergencies-by
definition-are few, far between, and pertain to a small subset of
issues. In addition, the issuance of regulatory action may be compelled
by court-supervised deadlines or other mandates. These regulations are
different from the discretionary actions undertaken in the final rush
of the administration to advance controversial policies while
subverting transparency, rigor, and legitimacy in the rulemaking
process.

As a coalition, we do not take a position on any particular rule
but, rather, a principled stand on the proper conduct of rulemaking.
Our coalition likely contains proponents and opponents of nearly every
major regulation you would consider. We have different interests but
share a conviction: for the next few months, you should avoid issuing
all but the most urgent new regulations.

Yours truly,

Eli Lehrer, Senior Fellow, The Competitive Enterprise Institute

Steve Pociask Chief Economist, American Consumer Institute

Robert Dewey, Vice President, Government Relations and External Affairs, Defenders of Wildlife

Terrence Scanlon, Chairman & President, Capital Research Center

Adam Kolton Sr. Director, Congressional & Federal Affairs, National Wildlife Federation

Wayne Brough, Ph.D., Vice President for Research & Chief Economist, FreedomWorks

David Jenkins, Government Affairs Director, Republicans for Environmental Protection

Marcia Aronoff, Senior Vice President for Programs, Environmental Defense Fund

Related Files: nomidnightregs letter.pdf