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Midnight Regulations?
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Wiskedjak
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Dec 14, 2008, 11:15 AM
 
http://www.rollingstone.com/politics...final_fu/print

What are these "midnight regulations" being passed by Bush (and other exiting Presidents before him)? They seem to be laws issued by the President that don't require Congressional and House approval. Doesn't that fly in face of the checks-and-balances system?
     
Helmling
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Dec 14, 2008, 11:36 AM
 
Originally Posted by Wiskedjak View Post
http://www.rollingstone.com/politics...final_fu/print

What are these "midnight regulations" being passed by Bush (and other exiting Presidents before him)? They seem to be laws issued by the President that don't require Congressional and House approval. Doesn't that fly in face of the checks-and-balances system?
The checks and balances have been out of whack for well over a century now. The growing executive power would be anathema to our founding fathers.
     
ebuddy
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Dec 14, 2008, 11:41 AM
 
Originally Posted by Wiskedjak View Post
http://www.rollingstone.com/politics...final_fu/print

What are these "midnight regulations" being passed by Bush (and other exiting Presidents before him)? They seem to be laws issued by the President that don't require Congressional and House approval. Doesn't that fly in face of the checks-and-balances system?
- At first I thought; "Rolling Stone... hmm, interesting source for news".
- Then I noticed that the article was posted 11 days into the future.
- Much to my chagrin, began reading the article and knew from the first line it was going to be a fun ride.
With president-elect Barack Obama already taking command of the financial crisis, it's tempting to think that regime change in America is a done deal.

From the article;
The most jaw-dropping of Bush's rule changes is his effort to eviscerate the Endangered Species Act. Under a rule submitted in November, federal agencies would no longer be required to have government scientists assess the impact on imperiled species before giving the go-ahead to logging, mining, drilling, highway building or other development. The rule would also prohibit federal agencies from taking climate change into account in weighing the impact of projects that increase greenhouse emissions — effectively dooming polar bears to death-by-global-warming. According to Carl Pope, executive director of the Sierra Club, "They've taken the single biggest threat to wildlife and said, 'We're going to pretend it doesn't exist, for regulatory purposes.'"

Couple of things;
1) if Obama has already assumed command of the financial crisis (he's really doing a knock-down job by the way), how do we know these 'Midnight Regulations' are not also a product of his will having spoken privately with Bush? Indicative of Bush's third term? Could be.

2) If this is the most "jaw-dropping of Bush's rule changes", I'm going to go with 'non-story out of the gate, non-sources to substantiate the story, and non-story confirmed.' This same author's got some compelling "anti-McCain" stuff too though. Yay.

3) Are we only damning hopelessly cute animals to death by global warming or are there a bunch of ugly animals we're killing off too.
ebuddy
     
turtle777
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Dec 14, 2008, 11:58 AM
 
Pfff, if Bush can issue those last minute, it won't take but a second for Obama to "undo" those.

I don't see what's the issue here.

-t
     
Wiskedjak  (op)
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Dec 14, 2008, 12:19 PM
 
So ya, Rolling Stone. My post here isn't rooting for Obama, criticizing Bush or pining for the animals. It just seems odd to me that an exiting President can push through last minute laws that don't appear to need approval from the other arms of government.

Opinions about Obama and Bush aside, my question is: Can an exiting President issue last minutes laws without Congressional and House approval, or is Rolling Stone full of it? (again only on the issue of last minute regulations; I acknowledge that Rolling Stone is certainly full of it on other issues in the article from a variety of perspectives)
     
OldManMac
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Dec 14, 2008, 12:32 PM
 
I posted this in another thread here weeks ago. Rolling Stone is apparently late to the party. From what I've read, it's going to be very difficult to undo many of these regs, so Bush is leaving his ugly imprimatur on America after all. Of course that's not surprising, seeing as how he doesn't give a **** about the American people.
     
ghporter
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Dec 14, 2008, 12:35 PM
 
Presidents issue Executive Orders, which are without any checks and balances. I recall reading about a number of such orders establishing "national emergencies" that have never been rescinded, though the "emergency situation" (i.e. the Cuban Missile Crisis) has passed.

On the other hand, Rolling Stone has been known to sort of inflate the actual effect of things they report about. "Eviscerating" the ESA would be hard to do, since it is indeed a law in force and any number of groups could sue to halt changes at any time.

Glenn -----OTR/L, MOT, Tx
     
mduell
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Dec 14, 2008, 01:40 PM
 
Obama can reverse all of Bush's executive orders the day he takes office. Carter held the record for the most last minute executive orders for a few decades, but IIRC Clinton issued more; I suspect GWB will set a new high water mark.
     
Helmling
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Dec 14, 2008, 02:00 PM
 
Originally Posted by Wiskedjak View Post
So ya, Rolling Stone. My post here isn't rooting for Obama, criticizing Bush or pining for the animals. It just seems odd to me that an exiting President can push through last minute laws that don't appear to need approval from the other arms of government.

Opinions about Obama and Bush aside, my question is: Can an exiting President issue last minutes laws without Congressional and House approval, or is Rolling Stone full of it? (again only on the issue of last minute regulations; I acknowledge that Rolling Stone is certainly full of it on other issues in the article from a variety of perspectives)
They're not laws, they're rules. The president can't legislate, but as head of the executive he can issue a whole lot of directives on how various government agencies enforce the laws.
     
tie
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Dec 14, 2008, 02:24 PM
 
I think people here are missing the point. Many of these are rule changes, not executive orders. Unlike executive orders, they cannot be unilaterally reversed by an incoming president. "It is much more difficult for a new president to revoke or alter final regulations put in place by a predecessor. A new administration must solicit public comment and supply 'a reasoned analysis' for such changes, as if it were issuing a new rule, the Supreme Court has said." (link)

Some of the other last-minute rules Bush is putting in place include making it easier to build power plants next to national parks, allowing Appalachian mountaintop coal miners to bury the adjacent streams, increasing Medicaid charges for low-income people, changing new source review, and making it harder to regulate toxic substances affecting workers. Basically Republican bread-and-butter, anti-American policies. One of his executive orders was to open lands immediately adjacent to Utah national parks to oil drilling (the drillers will have to paint their gear red so as not to spoil the environment around Moab ). Since this is an executive order, it can be reversed, but I suppose not if rights have already been sold (?).

I haven't been able to find a good internet reference on this stuff, sorry. Somehow I thought I read there was a minimum 60 days to reverse any of it, but I can't find that now, and it seems like some of these things may take much longer to fix.
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It will depart at 20 minutes to 5.
     
The Crook
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Dec 14, 2008, 03:18 PM
 
Okay guys, I have a pretty good understanding of administrative law, so let me address some of your concerns:

Tie has it right in that these aren't executive orders that Obama can easily reverse, but are rule changes from administrative agencies. Rule changes are considerably harder to reverse; in fact, to reverse them Obama must go through the entire lengthy rulemaking process again or try to get them reversed through judicial review.

Administrative agencies are created by Congress by statute to help Congress do its job. They are a mix of executive, legislative, and judicial functions. In theory, a legislature cannot delegate its legislative powers (nondelegation doctrine), but in practice, legislatures do so frequently by enacting statutes that confer broad rulemaking power on administrative agencies.

We do this for functional reasons. From the earliest times, Congress delegated to agencies the power to make law by adopting regulations. Congress simply doesn't have the know-how and depth of expertise that administrative agencies do. And in fact, nothing would get done if they had to do what administrative agencies do themselves. So that's why we have them.

There are limits on what power Congress can delegate to agencies; on when the judicial power of agencies is improper; and because the constitution calls for separation of powers, on when the combination of functions within an agency violates the separation of powers.

Now, about rulemaking, the article does a pretty good job of explaining the options for reversing rule changes:

Once a rule is published in the Federal Register, the Obama administration will have limited options for expunging it. It can begin the rule-making process anew, crafting Obama rules to replace the Bush rules, but that approach could take years, requiring time-consuming hearings, scientific fact-finding and inevitable legal wrangling. Or, if the new rules contain legal flaws, a judge might allow the Obama administration to revise them more quickly. Bush's push to gut the Endangered Species Act, for example, was done in laughable haste, with 15 employees given fewer than 36 hours to review and process more than 200,000 public comments. "The ESA rule is enormously vulnerable to a legal challenge on the basis that there was inadequate public notice and comment," says Pope of the Sierra Club. "The people who did that reviewing will be put on a witness stand, and it will become clear to a judge that this was a complete farce." But even that legal process will take time, during which industry will continue to operate under the Bush rules.

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Wiskedjak  (op)
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Dec 14, 2008, 03:20 PM
 
Originally Posted by Helmling View Post
They're not laws, they're rules. The president can't legislate, but as head of the executive he can issue a whole lot of directives on how various government agencies enforce the laws.
So, what is a "rule"?
     
The Crook
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Dec 14, 2008, 03:39 PM
 
A rule is "the whole or part of any agency’s statement of general or particular applicability and future effect." Administrative Procedure Act § 551(4). But only statements of general applicability/effect are resolved through rulemaking; statements of particular applicability are resolved through adjudication, even though it technically fits the definition of a rule. The procedures for both are different.

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tie
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Dec 14, 2008, 06:46 PM
 
Here is a decent (although biased) piece from the New Yorker, link, that explains the midnight regulations.

Since Jimmy Carter, every President has complained about midnight regulations and, four or eight years later, every President has issued them. On a percentage basis, George Bush senior holds the record: his Administration issued a greater proportion of its rules during the midnight period—generally defined as the last three months in office—than any other President’s. In absolute terms, though, Bill Clinton takes the gold: his Administration, during its midnight phase, published more than twenty-six thousand pages’ worth of rules in the Federal Register. (According to the National Journal, by the time Clinton left office “the journalists who cover the White House had thrown up their hands at the prospect of keeping up.”) President George W. Bush used the timing of these regulations as a rationale for suspending many of them. “I told people pretty plainly that I was going to review all the last-minute decisions that my predecessor had made, and that is exactly what we’re doing,” he declared.

Democratic leaders in the House and the Senate have already indicated that they will try to rescind the most egregious of Bush’s midnight regulations. There are a few ways to do this, all of them difficult. Under an obscure law passed in 1996, Congress has the power to revoke recently imposed rules. That law, though, has been used successfully only once. (President Bush, for all his grumbling—and despite Republican control of Congress for much of his tenure—ended up implementing more than three-quarters of the midnight rules that Clinton had left him, including the one on arsenic, just as they were written.) Alternatively, once in office, Barack Obama could ask his agencies to go through the rule-making process all over again. But, by the time that was finished, a good deal of the damage might already have been done. Once a power plant has been rebuilt, it can’t readily be unrebuilt.
The Bush Administration, probably as a result of its own experience, is now trying to craft rules that are as difficult as possible to reverse. Generally speaking, major federal regulations go into effect sixty days after they are published. On November 20th, it will be sixty days before Bush leaves office. Over at the Federal Register, it’s going to be a busy week. ♦
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