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Please begin with an informative title:

There have been several diaries about the Obama examination of Bush executive orders and regulations.  While I have commented on several of them, I thought I would consolidate into a diary.  I work on regulatory policy for a living.


You must enter an Intro for your Diary Entry between 300 and 1150 characters long (that's approximately 50-175 words without any html or formatting markup).

Executive orders are easy to undo.  Since they do not have the force of law they can be reversed with the stroke of a pen.  Expect Obama to get rid of many of the Bush orders within the first few days of his presidency.

On the other hand, regulations are harder.  Regulations do have the force of law and are promulgated using a process that has grown increasingly complicated with time.  

Midnight regulations have a long history and every president since Carter has been criticized for issuing regulations at the end of his term.  Some of these are indeed rushed and others have been lingering for a long time and the end of the administration provides the incentive to complete them.  

The difficulty in undoing regulations that have gone through proper process varies by timing.  If the rules are effective by January 20, 2009, then there are three options:

  1. The Congressional Review Act allows Congress to overturn rules by a joint resolution which cannot be filibustered in the Senate.  These procedures apply for 60 session days (not calendar days) after the rule is published.  The (new) President must sign the joint resolution.  This is how the Clinton ergonomics rule was overturned.  Despite the difficulty in passing something through Congress during times when a focus on the stimulus package, the banking crisis, and Iraq will command attention, this may be the best route for undoing many of the late Clinton {Update -- meant Bush} rules.

  2. The new President can begin a rulemaking to reverse the previous rule.  This will take years (notice and comment, and many other procedures must be followed) and be litigated.

  3. Private groups can sue to overturn the rule.

If the rules have been published but are not yet effective the new Administration will take the following course:

Suspend the effective date of the rules for a long enough period to decide whether they should be effective or not.  Engage in rulemaking to reverse those rules that the new President disagrees with.  This will take time and is legally risky (eventually groups will sue to force the Obama administration to make rules that have followed the correct process effective) but at least the most odious rules in this category will not take effect.  Allow those regulations that are not objectionable to become effective.  The Bush Administration used what is known as the "Card Memorandum" to effectuate this process to deal with the midnight regulations from the Clinton Administration.

If the rules have been proposed but not finalized, nothing needs to be done.  The Obama administration can just let the Bush proposals wither on the vine.

Finally administrative actions like the sale of oil leases described in the New York Times yesterday are very hard to undo.  Lawsuits are probably the only mechanism and the probability of success is low.

Extended (Optional)

Originally posted to stusviews on Sun Nov 09, 2008 at 12:23 PM PST.

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