Article

The Bad and the Ugly

Experts at a CAP event discuss controversial Bush midnight regulations and how President Obama can forge a new agenda.

For more on this event, please visit the events page.

The Bush administration adopted a slew of problematic regulations during the past six months, including rules to relax enforcement against factory farm runoff, limit women’s access to reproductive health services, and make it more difficult for workers to take advantage of the Family and Medical Leave Act.

The Office of Management and Budget approved 157 of these so-called midnight regulations between September 1, 2008 and December 31, 2008. Many were timed to take effect before President Obama’s inauguration—a move that blocks the incoming administration from immediately suspending them.

Two CAP reports provide more numbers and ugly details. “Cleaning Up and Launching Ahead” provides data on regulatory output during transition periods from 1983 to 2008. This report provides context for what is going on now. “After Midnight,” produced jointly with OMB Watch, specifically lists problematic regulations adopted in the Bush administration’s final months. Both reports identify ways to undo Bush regulations and offer recommendations for an affirmative regulatory agenda.

The papers were released Thursday at an event at CAP featuring Gary Bass, executive director of OMB Watch; Anne Joseph O’Connell, author of “Cleaning Up and Launching Ahead” and assistant professor of law at the University of California-Berkeley; and Sally Katzen, member of the Obama-Biden transition team and former administrator of OMB’s Office of Information and Regulatory Affairs under President Clinton. Reece Rushing, CAP’s director of regulatory and information policy, moderated the discussion.

O’Connell pointed out there was a spike in significant regulations near the end of the Bush administration. This final flurry is consistent with previous administrations. Yet Bass said, “This isn’t a numbers game.” It’s about our health, environment, and well-being. Many of the last-minute Bush rules, he said, are “crummy and sloppy” and have been pushed through too quickly.

Bass laid out three ways to reverse the new Bush rules: legislative action, through the Congressional Review Act; litigation in the courts; and administrative action, in particular rulemaking, the process by which regulation is made and potentially repealed.

On President Obama’s first day in office, White House Chief of Staff Rahm Emanuel issued a memo instructing executive agencies and departments to freeze all pending regulations until they can be reviewed and approved by someone appointed or designated by the president. Emanuel’s action, O’Connell said, was “more tuned to legal complexities and legal requirements” of evaluating these rules than the similar memo issued by President Bush’s first Chief of Staff Andrew Card in 2001. In fact, it was “very similar to the Bush memo,” Bass said, “except it follows the law.”

As Bush actions are dealt with, President Obama also faces the challenge of developing an affirmative agenda. Many agencies, however, have been “devastated” by the past eight years, as career civil servants have left, frustrated and demoralized by the political leadership, Katzen said. The Obama administration will need to rebuild the civil service to achieve its objectives. Quickly installing political leadership is also important “to give guidance to the civil service,” said O’Connell, who authored another report for CAP, “Let’s Get It Started,” on reforming the political appointment process.

O’Connell and Bass both offered other suggestions for launching an affirmative agenda. O’Connell said that the White House must communicate clearly its priorities to the agencies, while Bass added that the Office of Information and Regulatory Affairs—the gatekeeper of regulations within OMB—should play a coordinating role among all federal regulatory bodies. What’s more, agencies need adequate resources to enforce the rules once they are on the books.

Ultimately, Rushing said, rulemaking “takes time and energy,” and the Obama administration faces the daunting task of cleaning up the damage of the past eight years and forging ahead in a positive direction. As Katzen put it, “You’ve got a big job, Mr. President.”

More on midnight regulations:

Event: After Midnight

ReportAfter Midnight: The Bush Legacy of Deregulation and What Obama Can Do

ReportCleaning Up and Launching Ahead: What President Obama Can Learn from Previous Administrations in Establishing His Regulatory Agenda