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.
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
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
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.
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.
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.
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.
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
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
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.
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.