When the clock strikes midnight

By: Brian Bohnert

As the clock winds down on the Bush presidency, it seems as though our 43rd president is not done putting his ideological stamp on the American political landscape – this time in the form of last minute executive orders and executive rule changes. This article discusses how he has gone about it and about how they plan on making them last far into an Obama presidency.  Last May, White house chief of staff Josh Bolton instructed all of the offices within the cabinet to finalize any recommendations by November 1st.  Why is that date significant?  The rules state that if an order or regulation is finalized within 60 days, before the next president takes over, it can simply be overturned by the new administration by stopping the process.  However, if a regulation has already taken affect by that time, it becomes nearly impossible to overturn it without congressional action.  This guy discusses the process at length:  As a result, the Bush administration has put numerous regulations on the table and it looks might have met the deadline on some of the most egregious ones.  This list is tracking the regulations and indicates that it is business as usual for the Bush team.  Allowing loaded guns into National Parks, easing pollution standards for factories, opening public land for oil shale exploration, easing restrictions on uranium mining and decreasing police surveillance restrictions are only a few of the ideological driven regulations that are in process.  The practice of “midnight regulations” is nothing new but traditionally presidents will implement new regulations (such as Clinton banning two stroke snowmobiles -or “machines” if you’re from Alaska- from Yellowstone) instead of easing old ones.  Most of the rules that Bush is proposing will ease common sense environmental and economic rules.  According to Gary Bass, the executive director of OMB watch, the reason is very clear: 

“This is Bush trying to leave a legacy that supports his ideology. This was very strategic and it was in line of the ideology of the Bush administration which has been to put in place a free market and conservative agenda.” 

To be fair, the Bush adminstration has said that they are not up to anything shifty and responded by saying:

“We are not rushing regulations through at the last minute. We are simply continuing our responsibility of governing until the end of the president’s term,” said White House spokesman Carlton Carroll.

Well forgive me for taking Carroll’s words with a rather large grain of salt as this administration’s past track record is spotty at best.  So how can the Democrats respond?  Ironically, it might be the GOP that will end up giving the tools to the Dems to overturn these last minute rules.  GOP pushed through the “Congressional Review Act” in 1996 for the expressed purpose of stopping Clinton from implementing last minute rules before he left office.  This act allows congress to vote on rule changes that occur within 60 days of the end of the term by having an up or down vote – which has only happened once, when congress overturned an ergonomic workplace rule Clinton pushed for.  However, the political ramifications of this are significant when the Obama team is trying to build a sense of bi-partisanship in the new congress.

That being said, if we take Obama at his word, there will be significant push back against these last minute rules and executive orders.  On the campaign trail, Obama promised in the first 100 days his AG would look at every Bush Executive order and overturn things that look unconstitutional (so, take your pick).  He reiterated his commitment to this promise on 60 minutes and said-much to the chagrin of Mitt Romney – definitively that he plans on closing Gitmo and restricting the use of torture by US forces.  

while some of the regulations will remain due to the political realities of Washington, it is at least encouraging to see a leader take a stand on things he will not be able to easily back away from.  Hopefully, Team Obama can minimize the damage done by Bush on the way out the door.

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2 Comments

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2 responses to “When the clock strikes midnight

  1. Tony Robinson

    Great post Brian. The articles and detail you link to here are very informative, and it is interesting to learn of the way history circles back on itself–I am referring to the irony of the GOP Congress passing new rules to allow them to stop Clinton’s “midnight rules,” which are now being used by the Dems to stop Bush from doing the the same. It’s also interesting to note that the very first important supreme court case (Marbury vs. Madison) involved this same time-honored practice of an outgoing president trying to imprint his ideology on the new administration by pushing through some new midnight rules. Back in the day, they called them “midnight appointments,” otherwise known as the last minute judicial appointments of the federalists as they were booted out of office by the Jeffersonian anti-federalists. So this all goes back a bit further than the endless Bush-Clinton wars…

  2. Stephen Noriega

    This practice actually goes back to the Sumerians during the rule of God-king Ur – just joking. I’m sure, though, that it is human nature to say the last word, even while leaving in disgrace.

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