An incoming president has a few options available to reverse the tide of midnight regulations enacted by his predecessor. Time is often of the essence, since the earliest proposals in the midnight period may have already been reviewed, published in the Federal Register and undergone the 60-day waiting period. In other words, they may already be law. Once a new regulation becomes law, it takes as much time and energy to repeal it as it took to create it. A new administration must also show why repealing the regulation or substituting it with a new one is a better alternative to the original proposal. With midnight regulation, this may not be as difficult as it might be costly in time and taxpayer funds.
More effectively, the new administration can issue an executive order suspending new regulations that haven't yet become law and repeal any that are still being reviewed. Presidents Ronald Reagan, Bill Clinton and George W. Bush all ordered such directives upon taking office. Congress also has a tool available to use, one ironically signed into law by the most prolific midnight regulator, Bill Clinton: the Congressional Review Act of 1996.
Congress has always had the power to repeal laws, but the CRA grants Congress the power to repeal new regulations with simple majorities in both the House and Senate [source: Brito and de Rugy]. The repeal requires the president's signature, and here's where the CRA gets tricky: The CRA is only effective when an incoming administration and Congress are controlled by the same party. This is an uncommon occurrence, although it happened in 2001 and 2008. Even when Congress and the White House are aligned, the CRA hasn't been widely used. In 2001, it was used to repeal just one of President Bill Clinton's midnight regulations.
A number of simple solutions have been proposed that could address the problem of midnight regulations and the difficulty they can create for a new administration. Passage of a moratorium on new regulations during the midnight period or laws that make it easier for a new president to repeal last-minute legislation enacted by his predecessor could protect against the damage midnight periods currently cause [source: Brito and de Rugy]. None, however, have been implemented; administrations are reluctant to hamstring their own future efforts by lobbying for legislation that will reduce midnight regulations at the end of their presidencies.
A midnight period occurred in late 2008 when two-term Republican president George W. Bush's administration came to an end. Bush put forth several controversial midnight regulations, including a Department of Health and Human Services "right of conscience" regulation that redefined contraception as abortion and expanded protection for health care workers who refuse to give counsel on contraception to patients [source: Savage]. Bush's successor, Democratic-president-elect Barack Obama, told the media he would try to repeal the regulation upon taking office. In the interim, however, he was forced to sit idly by until the end of his predecessor's midnight period [source: Pear].
Like many modern presidents before him -- including his predecessor -- Obama could look forward to being initiated into the presidency by spending political capital on a sensitive issue he opposed.
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More Great Links
- Brillman, Dan. "A history of bumpy transitions." Newsweek. November 5, 2008. http://www.newsweek.com/id/167691
- Brito, Jerry and de Rugy, Veronique. "Midnight regulations and regulatory review." George Mason University. September 2008. http://www.mercatus.org/uploadedFiles/Mercatus/Publications/Midnight%20Regulations.pdf
- Kolbert, Elizabeth. "Midnight hour." The New Yorker. November 24, 2008. http://www.newyorker.com/talk/comment/2008/11/24/081124taco_talk_kolbert
- Overby, Peter. "Bush hits deadline for 'midnight regulations.'" NPR. November 21, 2008. http://www.npr.org/templates/story/story.php?storyId=97291312
- Pear, Robert. "Last-minute Bush abortion ruling causes furor." International Herald Tribune. November 18, 2008.http://www.iht.com/articles/2008/11/18/america/abort.phpf
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- "Overview of Regulations.gov." Regulations.gov. Accessed November 26, 2008. http://www.regulations.gov/search/about.jsp#
- "Political capital." Canadian Office of the Commissioner of Official Languages. May 2006. http://www.ocol-clo.gc.ca/html/stu_etu_052006_33_e.php
- "U.S. Supreme Court rules Florida top court violated Constitution." CBC News. December 14, 2000. http://www.cbc.ca/world/story/2000/12/12/uselxn_crt001212.html
- "Who would you rather sit down and have a beer with…Al Gore or George Bush? Sam Adams taps voters." Business Wire. October 17, 2000. http://www.allbusiness.com/government/elections-politics-campaigns/6516506-1.html