Idea of the Day: Using Court Action to Fight Midnight Regulations

January 23, 2009

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Challenges will certainly be brought in federal court to overturn Bush midnight regulations. Environmental groups and labor unions, for example, have both won victories overturning Bush regulations in previous years. And several Bush midnight regulations are attempted responses to court decisions overturning earlier versions.

An agency must observe its rulemaking requirements when promulgating regulation, including the Administrative Procedure Act, the underlying statute directing the action, and the various other analytical and procedural controls. A challenge can be won if a court finds that there are any procedural or substantive violations of these requirements. The court may then set aside the rule and send it back to the agency for revision or additional justification. Litigation may take years, however, and the rule may not ultimately be overturned.

A faster option is settlement. The Obama administration may choose to settle lawsuits against Bush rules that it does not support. The Bush administration did this with a number of Clinton rules, including a ban on snowmobiles in Yellowstone. The Obama administration may agree in a settlement not to enforce a Bush regulation while it moves to revise or repeal it.

The Obama administration may wish to enforce some rules, such as clean water standards, even if they are weaker than desired. An agreement not to enforce, however, makes sense for regulations that are completely undesirable. One example is the rule that threatens loss of funding to health care providers that refuse to allow their employees to withhold reproductive health services on religious or moral grounds.

Once a settlement is reached, it also may be challenged in court by parties supporting the rule. The administration thus must have a compelling justification for any settlement it reaches. Otherwise, the settlement could be overturned and the rule left in place.

For more on this topic, please see:

• After Midnight: The Bush legacy of deregulation and what Obama can do
• Cleaning Up and Launching Ahead: What President Obama can learn from previous administrations in establishing his regulatory agenda