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Midnight Regulations

As of midnight last night the Bush Administration's window for passing rules and having them take effect before the Obama Administration takes office passed.

The rulemaking process, as established in the Administrative Procedures Act, states that all rule stake effect within 60 days of their establishment. Within 60 days (30 if the rules has lees than a $100 million impact on the economy) public comment can be offered that can have an impact on the proposed rule.

Here's a bit from Yahoo News discussing whether the rules are reversible:

Getting rid of a rule that is already in effect is enormously difficult, because it must be replaced with another rule. That process can take months or even years and could leave some of the Bush rules in place in the meantime. It can also lead to lawsuits.

“If you start the rulemaking process over again, the end product is likely to be challenged in court by somebody, and the administration would need to develop a record that supports the decision to promulgate a new rule,” said Robert Glicksman, an administrative law professor at the University of Kansas.

Bush’s midnight regulations also could be challenged by public interest groups, who are already considering legal actions to get some of them overturned. If the Obama administration agrees with the group’s position, it could promise the court to develop a new rule that both parties can agree on. But that would open up the possibility of further legal challenges from third parties, such as utility companies or other industry interests, which could assert that the Obama administration and the group were participating in a “collusion of interests” without adequately considering the impact on industry.

“By intervening, industry could buy more time and save billions of dollars by avoiding compliance to a new rule,” said Rena Steinzor, a University of Maryland law professor who is also a member of the Center for Progressive Regulation, a Washington, D.C.- based advocacy group.

Leave it to Congress to bypass such an arduous process, some Democrats in Congress are contemplating the use of the Congressional Review Act, an obscure Clinton-era law that allows Congress to vote to disapprove any rule finalized within about six months before Congress adjourns. It was passed by the Republican-dominated House in 1996, partly because Republicans wanted to shoot down Clinton-backed rules.

Here are links for more background:

From ProPublica: A masterlist of proposed regulations.
From the LAT: Environmentalists upset over some rules.
From Market Watch: Teamsters concerned about change in rules regarding hours truckers can drive.
From OMB Watch: Limits placed on use of Family and Medical Leave Act.
From ProPublica: Can Obama Reverse Rules?

Bush's Impact on Executive Power

Bush has attempted, with the hearty assistance of Cheney, to expand presidential power in a variety of ways. The question posed in this article is whether the effort will lead to a backlash in the next administration. Will we ultimately see a weaker office as a consequence if his actions?

The current dispute is simply the latest manifestation of a ongoing conflict between the political branches.

The struggle for supremacy dates to the nation’s birth. George Washington fought with Congress over its right to investigate a botched military expedition. Abraham Lincoln suspended habeas corpus and freed the slaves, with Congress ratifying his actions only afterward. Franklin D. Roosevelt quarreled so much with Congress and the courts over enacting the New Deal that he tried to pack the Supreme Court with more justices. Congress tried to restrain Dwight D. Eisenhower’s ability to negotiate diplomatic agreements with a constitutional amendment that barely failed. Ronald Reagan tripped up during the Iran-contra scandal by defying a Congressional ban on aid to Nicaraguan rebels. And Bill Clinton was impeached by the House (but acquitted in the Senate) for lying under oath about sexual trysts in the Oval Office.

The modern nadir in presidential power came during the administration of Richard M. Nixon, whose extra-constitutional adventures resulted in his resignation and a burst of Congressional activism intended to constrain the executive’s ability to wage war, conduct intelligence operations and spend money. A young Dick Cheney, chief of staff for the weak, unelected president who followed Nixon, Gerald R. Ford, resolved when he returned to the White House a quarter-century later to do all he could to restore that lost power.

The “unitary executive” theory he embraced held that because the Constitution provides for only one executive branch, Congress cannot intrude upon the president’s duties to manage the government. “Congress has by nicks and cuts over the last 30 years done a lot to limit presidential authority,” said Shannen W. Coffin, Mr. Cheney’s counsel until last year. “The president and vice president did put their foot down to Congress. A lot of the things the president stood up to have been happening since the Nixon White House.”

With the acquiescence of a Republican Congress and a public eager to fight terrorism, Mr. Bush and Mr. Cheney advanced their cause for years — the secret deliberations of an energy task force; the Patriot Act; “signing statements” that express reservations about enforcing a bill; warrantless surveillance; unrestricted detention of terrorism suspects; the reinterpretation of the Geneva Conventions.

But as Mr. Bush’s sky-high approval ratings collapsed, so did his capacity to preserve that newfound power. Lawmakers and judges began forcing him to seek legislative approval for military commissions and eavesdropping, proscribing interrogation techniques and trimming back some investigative powers.

How Lame a Duck?

Carl Cannon, a well respected presidential biographer, weighs in on the question whether George Bush is a lame duck, and if so when he became one. He also points out that the president still retains constitutional powers apart form his political strength.

Counter Offensive

The Weekly Standard and William Kristol try to stop the bleeding by publcishing a couple of feel good pieces about Cheney and Bush. Will they be enough?

"I took the W off my car today"

Sounds like a great line in a country song, but it was the subject line in an email received by Peggy Noonan (Reagan's chief speech writer).

Choice Quote: "I found myself Thursday watching President Bush's news conference and thinking about what it is about him, real or perceived, that makes people who used to smile at the mention of his name now grit their teeth."

The President's poll numbers have depended on maintaining his connection with his own party. He may have lost it.

LBJ & GWB

The parallels between the two are becoming more striking. Vietnam and Iraq is an obvious comparison made well here. Johnson also left his party in disarray and created opportunities for the opposition. It's too early to say what state the president will leave his party, but early indications are not hopeful.

Bush/Cheney

The Washington Post has one story about Bush's increased isolation, and a series about Cheney's unusually strong term as vice president.

About that Speech

Here is WaPo coverage of the speech that Karl Rove gave at the Clinton Presidential Library.

As tends to occur at this point in every second term presidency, speculation centers on a president's legacy--even though everyone in the administration denies that this is a concern.

After claiming that every president builds on the administrative achievements of their predecessors, Rove makes the following argument about what may be Bush's most enduring influence:

He said that the biggest Bush legacy will be what he terms the "Bush doctrine."
It "says if you train a terrorist, harbor a terrorist, feed a terrorist, you
will be treated like a terrorist yourself. And then the corollary of that, which
is that we will not wait until dangers fully materialize before taking action."

Critics weigh in however and claim that his legacy will be marked more by increased polarization in politics.

We'll stay on this subject.