Early to bed for federal regulations: A new attempt to avoid "midnight regulations" and its effect on political accountability

George Washington Law Review

Volumn 77, Issue 4, 2009, Pages 992-1001

  Carlberg, Christopher ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 69149084218     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (60)

1. See Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives, 78 N.Y.U. L. Rev. 557, 563 (2003); infra Part I.
2. One common criticism of midnight regulations this Essay will not address is that these regulations do not receive sufficient examination through the notice-and-comment rulemaking process.
3. See Mendelson, supra note 1, at 566-67.
4. Memorandum from Joshua B. Bolten, White House Chief of Staff, to Heads of Executive Departments &Agencies (May 9, 2008), available at http://www.ombwatch.org/files/regs/ PDFs/BoltenMemo050908.pdf [hereinafter Bolten Memo].
5. Id.
6. See generally Kathryn Turner, The Midnight Judges, 109 U. PA. L. REV. 494 (1961) (explaining the Judiciary Act of 1801 and the flurry of judicial appointments in the last two weeks of the Adams Administration).
7. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
8. Mendelson, supra note 1, at 560.
9. Jack M. Beermann, Presidential Power in Transitions, 83 B.U. L. REV. 947, 973-78 (2003).
10. See Jerry Brito &Veronique de Rugy, Midnight Regulations &Regulatory Review, 61 ADMIN. L. REV. (forthcoming 2009) (manuscript at 2-6, on file with author).
11. The Federal Register is the official recorder of the U.S. Government. It publishes proposed regulations and final regulations promulgated by the federal agencies. See The Federal Register (FR): Main Page, http://www.gpoaccess. gov/fr/index.html (last visited May 18, 2009).
12. See Brito &de Rugby, supra note 10 (manuscript at 7).
13. Id. (manuscript at 1).
14. See, e.g., David M. Herszenhorn, Lame-Duck Session Winds Down With Little to Show, N.Y. TIMES, Nov. 20, 2008, at A23.
15. Mendelson, supra note 1, at 563.
16. Brito &de Rugby, supra note 10 (manuscript at 3-4).
17. 5 U.S.C. § 553 (2006).
18. But see Mendelson, supra note 1, at 563 n.24 ("Federal Register pages are far from a perfect measure of regulatory activity since those pages can include not only new rule notices but a variety of other notices, such as rule repeals, public meetings, or proposed litigation settlements.").
19. Jason M. Loring &Liam R. Roth, After Midnight: The Durability of the "Midnight" Regulations Passed by the Two Previous Outgoing Administrations, 40 WAKE FOREST L. REV. 1441, 1443 (2005).
20. Brito &de Rugy, supra note 10 (manuscript at 2).
21. Mendelson, supra note 1, at 562.
22. Brito &de Rugy, supra note 10 (manuscript at 3).
23. Loring &Roth, supra note 19, at 1445.
24. Jay Cochran, III, The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters 4 (Mar. 8, 2001) (working paper), available at http://www.mer catus.org/PublicationDetails.aspx?id=17546.
25. Id.
26. See Brito &de Rugy, supra note 10 (manuscript at 9).
27. See generally B.J. Sanford, Note, Midnight Regulations, Judicial Review, and the Formal Limits of Presidential Rulemaking, 78 N.Y.U. L. REV. 782, 793-98 (2003) (arguing that the presidential directives that have been passed by a new administration to delay the promulgation of midnight regulations of the old administration are illegal).
28. Postponement of Pending Regulations, 46 Fed. Reg. 11,227 (Feb. 6, 1981);
29. see Sanford, supra note 26, at 793-94.
30. Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702 (Jan. 24, 2001) (instructing agency heads to "send no proposed or final regulation to the Office of the Federal Register (the 'OFR') unless and until a department or agency head appointed by the President after noon on January 20, 2001, reviews and approves the regulatory action").
31. Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4435 (Jan. 26, 2009).
32. See, e.g., David E. Rosenbaum, Bush Rules! It's Good to Be the President, N.Y. Times, Jan. 28,2001, § 4, at 16 (noting that immediately following President Bush's inauguration, lobbyists for special interests were "leaning on the Bush administration to move quickly to overturn policies put in place under Mr. Clinton," and listing "some of the most important rules, called midnight regulations, adopted in the final days of the Clinton presidency").
33. Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 VA. L. REV. 889, 891 (2008).
34. See Brito &de Rugy, supra note 10 (manuscript at 12).
35. Bolten Memo, supra note 4, at 1.
36. Id.
37. see also Charlie Savage &Robert Pear, Administration Moves to Avert Late Rules Rush, N.Y. Times, May 31, 2008, at Al.
38. Bolten Memo, supra note 4, at 1.
39. Id.
40. Savage &Pear, supra note 34, at Al;
41. see also R. Jeffrey Smith, A Last Push to Deregulate: White House to Ease Many Rules, WASH. POST, Oct. 31,2008, at Al (quoting White House spokesman Tony Fratto: "This administration has taken extraordinary measures to avoid rushing regulations at the end of the term. And yes, we'd prefer our regulations stand for a very long time-they're well reasoned and are being considered with the best interests of the nation in mind.").
42. Savage &Pear, supra note 34, at Al.
43. Id.
44. Id.
45. see also Mendelson, supra note 1, at 592-93 (discussing the time and costs involved in a new administration overturning a prior-passed rule).
46. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
47. Id. at 842-43 ("When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." (footnotes omitted)).
48. Id. at 842.
49. Id. at 842-43.
50. Id. at 843.
51. See Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2104-05 (1990).
52. An additional rationale the Court gave for Chevron deference is that Congress delegated power to the agencies to fill in the holes in statutory schemes and the courts should not interfere with this delegation. See Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 466 (1989) ("Deference is necessary, Chevron argues, to avoid judicial usurpation of functions Congress wished to entrust to the agency.").
53. Further, Chevron deference is supported by the idea that courts should defer to the expertise federal agencies have in their subject area. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 514 (1989) ("The cases, old and new, that accept administrative interpretations, often refer to the 'expertise' of the agencies in question, their intense familiarity with the history and purposes of the legislation at issue, their practical knowledge of what will best effectuate those purposes.").
54. See William N. Eskridge, Jr. &Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretation from Chevron to Hamdan, 96 GEO. L.J. 1083, 1086 (2008) (stating that one of the reasons given by the Court for Chevron deference was that "agencies are relatively more legitimate policy-balancers than courts, because the executive branch is more 'directly accountable to the people'");
55. Sunstein, supra note 46, at 2087 (arguing that Chevron deference is rooted in part in the idea that agencies are better suited for interpreting statutory ambiguities than courts because of their relative policy expertise and that they can be held politically accountable). Sunstein has also noted that "[t]he fact-finding capacity and electoral accountability of the administrators are far greater than those of courts." Sunstein, supra note 46, at 2087.
56. Chevron, 467 U.S. at 865-66.
57. See Loring &Roth, supra note 19, at 1446 ("Agencies are largely unaccountable to the public during midnight periods, and thus have little incentive to avoid costly measures. Gone are the traditional political constraints of an administration subject to voter satisfaction, even in terms of a successor administration." (footnote omitted)).
58. See Brito &de Rugy, supra note 10 (manuscript at 11).
59. Id.
60. See, e.g., Smith, supra note 37, at Al.