Midnight Rules

In the waning days of the reign of The Worst President Ever^TM, the Bush administration has been in a mad dash to inflict as much damage as possible before handing over the keys to President-elect Barack Obama. The latest:

Animals and plants facing possible extinction could lose the protection of government experts who make sure that dams, highways or other projects do not pose a threat, under rules the Bush administration is set to put in place before President-elect Barak Obama can reverse them.

Just another one of the "midnight rules" the administration has pushed through in the past six months - others include measures to:

...end a ban on carrying loaded guns in national parks; a Labor Department plan to change the way regulators assess risk for jobs, especially those that expose workers to chemicals; and a proposal that could make it harder for women to get federally funded reproductive health care.

...more than 60 rules contain provisions making it impossible to sue in state courts for negligence on the part of manufacturers.

On the day George Bush took office in 2001, he began the process to reverse any midnight rules from Bill Clinton, yet now the Bush administration has put some 130 last-minute rules into place, all seemingly designed to help out their industry friends and screw over the American people. And knowing how difficult, costly, and time consuming it would be to reverse any rules already in place, they planned ahead:

To avoid a similar fate when Obama takes office, Bush regulators issued a call for what could be called 11 o'clock regulations. In May, White House chief of staff Joshua Bolten told agencies that except in "extraordinary circumstances,'' they should propose rules by June 1 so final versions could be issued by Nov. 1.

That gave them time to take effect before Obama is sworn in.

And what about any rules that missed the November 1st deadline? Forget about it. Because last September, when a complaint was made about the last-minute policymaking, the Office of Management and Budget offcial in charge of finalizing these rules, Susan Dudley, said that:

...the memo wasn't "intended to be a moratorium.'' She also signaled there will be post-November Bush rulemaking. The Bolten memo contemplates it would be appropriate, with White House approval, for some rules to proceed "without regard to deadlines.''

This is the same Susan Dudley who once wrote:

President Clinton's final months in office generated an unprecedented volume of new rules and regulations dictating how American businesses, citizens, and state and local governments must behave. Like Cinderella leaving the ball, many of the more than 7,000 presidential appointees at executive branch departments and agencies hurried to issue last-minute "midnight regulations" before they turned back into ordinary citizens.

Cinderella Dudley, by the way, was a recess appointment, after Congress refused to approve her nomination because of her opposition to "the most basic environmental, workplace, safety and public health protections," and another in a long line of Bush appointees who refused to honor a subpoena and was threatened with contempt of Congress charges. Now she can add "hypocrite" to her resume.

So, what options, beyond allowing these 130 rules to take effect, and spending years fighting to reverse them, will Barack Obama have? The Congressional Review Act, ironically enacted by Republicans to thwart Bill Clinton:

The Congressional Review Act set up a process in which Congress has 60 session days to review and possibly reject agency rules...

If a Congress member finds a rule objectionable, he/she can introduce a "resolution of disapproval."

The Act prescribes special expedited procedures, which limit debate in the House and ban a Senate filibuster, for consideration of the resolution...

If the motion to disapprove passes in both the House and Senate, and is then signed by the president, the rule essentially disappears. Even if it has already taken effect, the agency that issued it can no longer enforce the regulation or defend it in court. Furthermore, the agency is banned from pushing a similar version of the rule at a later date.

The Congressional Review Act has only been used once in the 12 years since it was enacted. Hopefully it will be used about 130 times when the 111th Congress convenes in January. Unless that would be too un-post-partisan-like.