Idea of the Day: Suspend Effective Dates of Bush Final Rules

January 26, 2009

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Final rules generally take effect 30 or 60 days after they are published in the Federal Register, depending on their significance. Rules not in effect by the inauguration may have their effective dates suspended.

Should President Obama choose to suspend effective dates, he would be taking a cue from the Bush administration. Two hours after President Bush took office, then-White House Chief of Staff Andrew Card issued a memo to all agencies instructing them to suspend the effective dates of any rules finalized during the Clinton administration but not yet in effect. This move did not by itself reverse any of the Clinton administration policies that Bush officials found objectionable, but the delay bought the new administration valuable time to plot its strategy. In some cases, the Bush administration ended up repealing suspended rules.

President Bush attempted to prevent the Obama administration from doing to his last-minute rules what he did to Clinton’s. In May 2008, then-White House Chief of Staff Joshua Bolten issued a memo instructing federal agencies to finalize any regulation they wished to complete under Bush’s tenure by November 1, 2008. Bolten claimed that the deadline was meant to curtail the usual flurry of last-minute activity that has characterized the final weeks of previous administrations. But many believe the White House’s true intention was to ensure that Bush regulations would be in effect by January 20, 2009.

Not every final Bush rule was completed by the November 1 deadline. Indeed, some highly problematic ones were not completed until January and well into December. But many midnight rules did take effect before President Obama’s inauguration, and their effective dates cannot be suspended. They will be the law until the Obama administration completes a new rulemaking to revise or repeal them.

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