Mooting the night away: Postinauguration midnight-rule changes and vacatur for mootness

Duke Law Journal

Volumn 60, Issue 2, 2010, Pages 453-497

  Cuenin, Ari ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 78649342644     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (301)

1. See, e.g., Jerry Brito & Veronique de Rugy, Midnight Regulations & Regulatory Review, 61 ADMIN. L. REV. 163, 163-64 (2009).
2. ("[M]idnight regulation[] describes the dramatic spike of new regulations promulgated at the end of presidential terms, especially during transitions to an administration of the opposite party.").
3. John M. Broder, A Legacy Bush Can Control, N.Y. TIMES, Sept. 9, 2007, § 4 (Week in Review), at 1.
4. ("Every president comes into office complaining about the... midnight regulations left on the White House doorstep by his predecessor."); see also infra Part III.
5. See, e.g., Andrew P. Morriss, Roger E. Meiners & Andrew Dorchak, Between a Hard Rock and a Hard Place: Politics, Midnight Regulations and Mining, 55 ADMIN. L. REV. 551, 588 (2003).
6. ("Midnight regulations are an important political weapon.").
7. (Describing midnight regulation as "a way for an administration to have life after death" (quoting Philip Clapp, President, National Environmental Trust)); infra Part III.A.
8. See infra Part III.B.
9. See infra Part III.C.
10. See, e.g., Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives, 78 N.Y.U.L. REV. 557, 624 (2003).
11. ("After the State of Idaho had filed litigation challenging [a Clinton-era midnight] rule... the Bush administration indicated that it would not be defending the rule on the merits." (footnotes omitted)).
12. Changing or rescinding midnight rules posttransition is frequently described as "undoing" midnight regulations.
13. See, e.g., REECE RUSHING, RICK MELBERTH & MATT MADIA, CTR. FOR AM. PROGRESS & OMB WATCH, AFTER MIDNIGHT: THE BUSH LEGACY OF DEREGULATION AND WHAT OBAMA CAN DO 6 (2009), available at http://www.americanprogress.org/issues/2009/01/pdf/midnight_regulations.pdf (listing "[o]ptions for blocking and undoing midnight regulations").
14. See infra Part III.C.
15. See infra Part III.C.2.
16. See Jason M. Loring & Liam R. Roth, Empirical Study, After Midnight: The Durability of the "Midnight" Regulations Passed by the Two Previous Outgoing Administrations, 40 WAKE FOREST L. REV. 1441, 1441 (2005).
17. (Noting President George W. Bush's "reluctance to amend or repeal midnight regulations" because of rule-change doctrine).
18. The case, FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009), and the Court's position on agency policy change are discussed in Part III.C.2, infra.
19. For further discussion of incoming presidents' responses to unfinished midnight rules, see infra Part III.B, and for further discussion of judicial review of these responses, see infra Part III.C.
20. Cf. 13C CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3533.10 (3d ed. 2008).
21. ("Distinctive questions arise when a case becomes moot after decision by the trial court.... The proper course to follow after determining that the case is moot and must not be decided on the merits, however, is... complicated.").
22. Wyoming v. USDA (Wyoming II), 414 F.3d 1207 (10th Cir. 2005).
23. Although other courts have analyzed vacatur in cases involving mootness from rule changes, e.g., Tafas v. Kappos 586 F.3d 1369 (Fed. Cir. 2009) (en banc), and policy changes, e.g., 19 Solid Waste Dep't Mechs. v. City of Albuquerque, 76 F.3d 1142 (10th Cir. 1996), Wyoming II is one of (if not the) only court of appeals cases that addressed a change to a midnight rule.
24. See, e.g., Elizabeth Rand, Recent Decision, The D.C. Circuit Review, August 1996-July 1997-Civil Procedure: Diluting the Presumption Against Vacatur, 66 GEO. WASH. L. REV. 789, 790-91 (1998).
25. ("Once a court determines that a judgment is moot, it may not consider its merits, but may dispose of the case as justice may require. A court examines the nature and character of the conditions which have caused the case to become moot in deciding whether to vacate the lower court's decision." (footnotes and internal quotations omitted)). The Supreme Court has noted that vacatur is an "extraordinary remedy." U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 26 (1994). An appellate court may either vacate as moot directly or remand to the district court with instructions to consider whether vacatur is appropriate. Bonner Mall, 513 U.S. at 29. This Note uses these options interchangeably.
26. Wyoming II, 414 F.3d at 1214, vacating as moot 277 F. Supp. 2d 1197 (D. Wyo. 2003); see also infra Part I.B.
27. See infra Part II.B.
28. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009).
29. Special Areas; Roadless Area Conservation, 66 Fed. Reg. 3244, 3272-73 (Jan. 12, 2001) (codified as amended at 36 C.F.R. pt. 294 (2009)).
30. (Explaining the roadless rule's novelty and interest).
31. See generally Martin Nie, Administrative Rulemaking and Public Lands Conflict: The Forest Service's Roadless Rule, 44 NAT. RESOURCES J. 687, 696-714 (2004) (providing a history of the roadless rule).
32. CURTIS W. COPELAND, CONG. RESEARCH SERV., R40777, "MIDNIGHT RULES" ISSUED NEAR THE END OF THE BUSH ADMINISTRATION: A STATUS REPORT 27 (2009).
33. Wyoming v. USDA (Wyoming I), 277 F. Supp. 2d 1197 (D. Wyo. 2003), vacated as moot, 414 F.3d 1207 (10th Cir. 2005).
34. See Wyoming v. USDA (Wyoming II), 414 F.3d 1207, 1211 (10th Cir. 2005) ("Oral argument was held on May 4, 2005, and the next day the Forest Service announced the adoption of a final rule replacing the Roadless Rule.... [T]he new [State Petitions for Inventoried Roadless Area Management] rule moots this case...."); see also Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 VA. L. REV. 889, 905 n.50 (2008) ("The [Tenth Circuit] case was mooted when the USDA, under President Bush, rescinded the [roadless] rule.").
35. E.g., Susan E. Dudley, The Bush Administration Regulatory Record, REGULATION, Winter 2004-2005, at 4, 5, available at http://www.cato.org/pubs/regulation/regv27n4/v27n4-mercreport.pdf (calling the roadless rule a "prominent Clinton midnight regulation").
36. Ben Lieberman, Opinion, Midnight Madness-Washington Style, SAN DIEGO UNION-TRIB., Jan. 10, 2001, at B7 (listing the roadless rule among midnight regulations).
37. (Providing a history of the roadless rule).
38. Act of June 4, 1897, ch. 2, 30 Stat. 11, 35 (codified as amended at 16 U.S.C. §§ 473-478, 479-482, 551 (2006)) ("The Secretary of the Interior shall make provisions for the protection against destruction by fire and depredations upon the public forests and forest reservations....").
39. H. Michael Anderson & Aliki Moncrief, America's Unprotected Wilderness, 76 DENV. U. L. REV. 413, 434 (1999).
40. Wilderness Act, Pub. L. No. 88-577, 78 Stat. 890 (1964) (codified as amended at 16 U.S.C. §§ 1131-1136 (2006)); id. § 3(b), 78 Stat. at 891 (codified as amended at 16 U.S.C. § 1132).
41. ("The Wilderness Act included a congressional mandate that the FS [Forest Service] inventory its land for possible wilderness designation.").
42. Wyoming v. USDA (Wyoming I), 277 F. Supp. 2d 1197, 1205 (D. Wyo. 2003), vacated as moot, 414 F.3d 1207 (10th Cir. 2005).
43. (Citing Administration of the Forest Development Transportation System: Temporary Suspension of Road Construction and Reconstruction in Unroaded Areas, 64 Fed. Reg. 7290, 7304-05 (Feb. 12, 1999) (codified at 36 C.F.R. § 212.13 (2000))).
44. (First and second alterations in original) (citations omitted) (internal quotation marks omitted).
45. Kootenai Tribe of Idaho v. Veneman (Kootenai Tribe II), 313 F.3d 1094, 1106 (9th Cir. 2002).
46. Wyoming v. USDA (Wyoming II), 414 F.3d 1207, 1211 (10th Cir. 2005).
47. see also Wyoming I, 277 F. Supp. 2d at 1203 (describing the Wyoming suit); Kootenai Tribe of Idaho v. Veneman (Kootenai Tribe I), No. CV01-10-N-EJL, 2001 WL 1141275, at *1 (D. Idaho May 10, 2001), rev'd, 313 F.3d 1094 (9th Cir. 2002) (describing a similar challenge to the rule in the District of Idaho).
48. Wyoming I, 277 F. Supp. 2d at 1203-04.
49. Wyoming I, 277 F. Supp. 2d at 1239.
50. Wyoming II, 414 F.3d at 1210. Interestingly, "[a] number of environmental organizations intervened on behalf of the federal defendants in defense of the Rule.".
51. ("[T]he new administration chose not to defend the rule in court.... [But] the Ninth Circuit granted intervenor status to several environmental groups.").
52. Kootenai Tribe II, 313 F.3d at 1106 ("On January 20, 2001, newly-inaugurated President George Walker Bush issued an order postponing by sixty days the effective date of all the prior administration's regulations and rules not yet implemented. The effective date of the Roadless Rule was thus postponed until May 12, 2001.").
53. see also Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702, 7702 (Jan. 24, 2001) (directing executive departments and agencies to temporarily postpone the effective dates of published regulations not yet implemented).
54. William M. Jack, Comment, Taking Care that Presidential Oversight of the Regulatory Process Is Faithfully Executed: A Review of Rule Withdrawals and Rule Suspensions Under the Bush Administration's Card Memorandum, 54 ADMIN. L. REV. 1479, 1480 (2002).
55. ("On January 20, 2001, Andrew H. Card, Jr., Assistant to the President and Chief of Staff, issued a memorandum... temporarily postpon[ing] the effective dates of published regulations not yet in effect.").
56. Kootenai Tribe II, 313 F.3d at 1106 (second alteration in original) (internal quotation marks omitted).
57. Wyoming II, 414 F.3d at 1211.
58. (Quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990)).
59. (Quoting City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000)) (internal quotation marks omitted).
60. ("If the Roadless Rule were to reappear in the future, there would be ample opportunity to challenge the rule before it ceased to exist.").
61. For a discussion of the vacatur-for-mootness doctrine and the inquiry courts make in deciding whether to vacate, see infra Part II.
62. Wyoming II, 414 F.3d at 1213.
63. See also Aaron S. Bayer, Vacatur for Mootness, NAT'L L.J., Mar. 20, 2006, at 15.
64. ("The court reasoned that since the Forest Service was not appealing the adverse decision (intervening environmental groups had filed the appeal), there was no manipulation of the judicial process and vacatur was appropriate.").
65. Wyoming II, 414 F.3d at 1213.
66. (Comparing the roadless rule's replacement to the mootness caused by legislative enactment in National Black Police Ass'n v. District of Columbia, 108 F.3d 346 (D.C. Cir. 1997)).
67. (Quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 23 (1994)).
68. See Wyoming II, 414 F.3d at 1213 ("This is... not a case in which a litigant is attempting to manipulate the courts....").
69. (Citing Nat'l Black Police Ass'n, 108 F.3d at 353).
70. See infra Part II.B-C.
71. See infra Part IV.
72. Wyoming II, 414 F.3d at 1213 & n.6.
73. See, e.g., Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78 (1990) ("[Article III's] caseor-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. To sustain our jurisdiction in the present case, it is not enough that a dispute was very much alive when suit was filed, or when review was obtained in the Court of Appeals.").
74. see also U.S. CONST. art. III, § 2 ("The judicial Power shall extend to... Cases... [and] Controversies....").
75. See generally Jill E. Fisch, Rewriting History: The Propriety of Eradicating Prior Decisional Law Through Settlement and Vacatur, 76 CORNELL L. REV. 589, 606-32 (1991) (detailing the effect of vacatur on judgments).
76. ("Although a vacated decision may remain in the case reporters, its precedential value is extremely limited." (footnote omitted)).
77. For more information on court rules against the citation of vacated, depublished, and unpublished opinions, see generally Stephen R. Barnett, No-Citation Rules Under Siege: A Battlefield Report and Analysis, 5 J. APP. PRAC. & PROCESS 473 (2003).
78. Certain statutes, like 42 U.S.C. § 1988, abrogate the common law and allow prevailing parties to recover attorneys' fees from party opponents: In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee.... 42 U.S.C. § 1988(b) (2006) (alterations in original). Vacatur for mootness pending appeal strips parties of prevailing party status for § 1988 purposes. Lewis, 494 U.S. at 480; see also Appellee Triantafyllos Tafas' Reply to Motion for Dismissal of Appeal & Request for Remand at 5-6, Tafas v. Kappos, 586 F.3d 1369 (Fed. Cir. 2009) (en banc) (No. 2008-1352) ("[E]ntitlement to... fees is dependent upon a threshold showing that Tafas is a prevailing party. Tafas should not be precluded by vacatur from recovering his attorneys fees despite prevailing at the district court...." (footnote omitted) (citing 28 U.S.C. § 2412 (2006))).
79. See RICHARD H. FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1311-12 (6th ed. 2009) (explaining nonmutual collateral estoppel).
80. See RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982).
81. ("When an issue of fact or law is actually litigated and determined by a valid and final judgment... the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.").
82. See, e.g., Gould v. Control Laser Corp., 866 F.2d 1391, 1395 n.6 (11th Cir. 1989) ("Vacating the consent judgment would preclude a collateral estoppel defense in a later case and decide the issue before it arises.").
83. See, e.g., Standefer v. United States, 447 U.S. 10, 25 (1980) (denying preclusion under nonmutual collateral estoppel against the government in a criminal prosecution). A party who prevailed against the government may still oppose vacatur for other reasons, such as the desire to recover fees as the prevailing party.
84. That nonmutual collateral estoppel does not apply against the government ties in to the concept of agency nonacquiescence-an agency's refusal to follow precedent against it.
85. See generally Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679 (1989).
86. (Discussing agency nonacquiescence). For present purposes, agencies may have even less incentive to avoid negative precedent by manipulatively changing rules to prompt vacatur because agencies can simply nonacquiesce in the judgments against them.
87. See infra text accompanying notes 256-59.
88. (Listing "forgoing the collateral estoppel and res judicata effects of the prior judgment," "the erasure of collateral consequences of an adverse judgment, the loss of precedential value for judicial decisions, and a diminished respect for the judicial process" among the "social costs" of vacatur).
89. See also Judith Resnik, Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA L. REV. 1471, 1526-32 (1994) (surveying some of the oft-cited public values of judgments).
90. (Arguing against vacatur in cases in which settlement moots the dispute because of the public cost of vacatur).
91. See, e.g., Ringsby Truck Lines, Inc. v. W. Conf. of Teamsters, 686 F.2d 720, 722 (9th Cir. 1982) (explaining that the decision to vacate "may be different in different cases as equities and hardships vary the balance between the competing values of right to relitigate and finality of judgment").
92. (Identifying the concern that vacatur for mootness could "let[] repeat players 'buy up' judgments that they dislike by settling cases pending on appeal and seeking vacatur").
93. See also Jill E. Fisch, The Vanishing Precedent: Eduardo Meets Vacatur, 70 NOTRE DAME L. REV. 325, 335 (1994).
94. ("[V]acatur seems like a type of precedential hide and seek.... Allowing routine vacatur also seems inconsistent with the broader structure of adjudicative lawmaking." (emphasis added) (internal quotation marks omitted)).
95. See U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 24-25 (1994) (stating that "[a] party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment" under the "equitable tradition of vacatur").
96. E.g., Hyundai Merch. Marine Co. Ltd. v. Oceanic Petrol. Source PTE, 656 F. Supp. 2d 416, 420 (S.D.N.Y. 2009) ("[T]he Court finds that the balance of the equities weighs against vacatur."); accord Bonner Mall, 513 U.S. at 26.
97. United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
98. U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18 (1994).
99. Munsingwear, 340 U.S. at 37.
100. U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 20 (1994).
101. See, e.g., Wyoming v. USDA (Wyoming II), 414 F.3d 1207, 1213 (10th Cir. 2005) ("This is not a case in which a litigant is attempting to manipulate the courts to obtain the relief it was not able to win in the judicial system.").
102. Bonner Mall, 513 U.S. at 25 n.3.
103. ("[W]here the government agency in the case moots the appeal by withdrawing its own contested policy or regulation, that action ordinarily will preclude vacatur." (citing Amoco Oil Co. v. U.S. EPA, 231 F.3d 694, 698-99 (10th Cir. 2000); 19 Solid Waste Dep't Mechs. v. City of Albuquerque, 76 F.3d 1142, 1145 (10th Cir. 1996))).
104. See infra note 182 and accompanying text.
105. Wyoming II, 414 F.3d at 1213 n.6.
106. Valero Terrestrial Co. v. Paige, 211 F.3d 112 (4th Cir. 2000).
107. See also NASD Dispute Resolution, Inc. v. Judicial Council, 488 F.3d 1065, 1069-70 (9th Cir. 2007) (holding that because the disputed regulations had been struck down by the courts, and not repealed by any party to the litigation, the judicial resolution of the controversy qualified as happenstance and vacatur was permissible).
108. Valero, 211 F.3d at 121 n.4 (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 25 n.3 (1994)).
109. Khodara Envtl., Inc. ex rel. Eagle Envtl. L.P. v. Beckman, 237 F.3d 186, 194-95 (3d Cir. 2001); Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346, 351-52 (D.C. Cir. 1997).
110. ("The [Bonner Mall] Court established a general presumption against vacatur that could only be overcome by 'extraordinary circumstances'...." (quoting Bonner Mall, 513 U.S. at 29)).
111. Khodara, 237 F.3d at 195.
112. see also Chem. Producers & Distribs. Ass'n v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006) ("Lobbying Congress or a state legislature cannot be viewed as 'causing' subsequent legislation for purposes of the vacatur inquiry.").
113. Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346 (D.C. Cir. 1997).
114. ("[T]he Bancorp presumption against vacatur might apply if the case has been rendered moot on appeal by enactment or repeal of a regulation, even though the courts accord the executive branch the same presumption of legitimate motive as is given the legislative branch.").
115. Cammermeyer v. Perry, 97 F.3d 1235 (9th Cir. 1996).
116. In this case, the district court ruled that both Cammermeyer's discharge from the military on the grounds of her sexual orientation and the Army's homosexuality regulations were unconstitutional.
117. Before the Ninth Circuit heard Cammermeyer's appeal, she was reinstated and the Army implemented its "Don't Ask, Don't Tell" policy.
118. Tafas v. Kappos, 586 F.3d 1369 (Fed. Cir. 2009) (en banc).
119. See also Rio Grande Silvery Minnow v. Keys, 355 F.3d 1215, 1220 (10th Cir. 2004) ("When the government undertakes remedial measures that do not result in manipulation of the judicial process and eliminate the underlying cause of an injunction, vacatur will be granted.").
120. See, e.g., William G. Howell & Kenneth R. Mayer, The Last One Hundred Days, 35 PRESIDENTIAL STUD. Q. 533, 550 (2005) (demonstrating empirically that presidents exercise their power up to the last moment).
121. See also Jack M. Beermann & William P. Marshall, The Constitutional Law of Presidential Transitions, 84 N.C.L. REV. 1253, 1262 (2006).
122. ("The certainty of the deadline [marking the end of the outgoing president's term] and the lengthy period between the election and the inauguration of the new president provide conditions for a great deal of late-term activity by an outgoing administration.").
123. ("[P]residents squeeze the[] last moments in office for all they are worth, issuing all sorts of rules and directives, many of which cannot be changed without exacting a significant political price.... While legislative processes may lay dormant at the end of a presidential term, the production of unilateral directives kicks into high gear.").
124. See, e.g., Tim Dickinson, Bush's Final F.U., ROLLING STONE, Dec. 25, 2008, at 57 (chronicling the Bush administration's last-minute regulations).
125. Elizabeth Kolbert, Comment, Midnight Hour, NEW YORKER, Nov. 24, 2008, at 39, 39 (describing midnight regulation generally and commenting on the Bush administration specifically).
126. Cindy Skrzycki, Democrats Eye Bush Midnight Regulations, WASH. POST, Nov. 11, 2008, at E1 (discussing the Obama administration's potential response to Bush's last-minute regulations).
127. (Evaluating how the Constitution and midnight regulation might interact).
128. (Discussing how the outgoing administration might tie the hands of its successor).
129. (Conducting an empirical analysis of regulatory action, focusing in part on political transitions).
130. ("The output of the outgoing administration, including presidential and agency action of various types, tends to increase substantially, especially when the outgoing administration is of the Democratic Party and the incoming President is a Republican.").
131. (Collecting much of the negative commentary on midnight rulemaking). The main charges leveled against midnight rulemaking are that it undermines presidential and administrative accountability, promotes inefficiency, and is just wrong in principle.
132. (Citing William S. Morrow, Jr., Midnight Regulations: Natural Order or Disorderly Governance, ADMIN. & REG. L. NEWS, Spring 2001, at 3, 18).
133. But see Jack M. Beermann, Presidential Power in Transitions, 83 B.U.L. REV. 948, 952 (2003).
134. (Arguing that even if presidents have sinister motives behind midnight regulations, "[e]fforts to embarrass or hamstring the incoming administration are all part of the political process," and "the outgoing administration should be free to advance its political agenda until the end of its term").
135. See, e.g., Jack M. Beermann, Combating Midnight Regulation, 103 NW. U. L. REV. COLLOQUY 352, 352 (2009), http://www.law.northwestern.edu/lawreview/colloquy/2009/9/LRColl2009n9Beermann.pdf ("While midnight regulation provokes an instinctively negative reaction, it is not completely clear what is wrong with it.").
136. (Quoting Jay Cochran, III, The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters (Mar. 8, 2001) (unpublished manuscript), available at http://mercatus.org/sites/default/files/publication/The_Cinderella_Constraint(1).pdf).
137. (Explaining the predominantly strategic uses of midnight regulation).
138. ("[P]assing midnight regulations is a winning strategy for an outgoing president who wishes to project his influence into the future.").
139. ("Timing is a form of waiting, not based on potential negative consequences, but rather... in order to help either one's own reelection bid or the election prospects of the incumbent party.").
140. Granted, not all late-term regulations are issued strategically or politically.
141. ("Most administrations pump out a stream of new regulations at the end of a president's term.... But not all midnight regulations are created equal.") This issue raises a characterization problem as "the line between permissible late-term action and undesirable 'midnight regulation' is unlikely to be particularly clear and is largely in the eye of the beholder.".
142. (Explaining the political consequences of midnight regulations for incoming presidents and arguing that "from the President-elect's standpoint, late-term policy entrenchment by the outgoing President is undeniably costly").
143. (Describing the "politicization" surrounding midnight rulemaking).
144. (Explaining that President George W. Bush desired to rescind many Clinton midnight regulations because of President Bush's "antiregulatory leaning," but that the Bush administration did not do so because "deregulation may... prove more difficult to justify").
145. (Explaining midnight rulemaking's "significant defects," including "sloppiness").
146. (Explaining that the Bush administration argued that "withdrawals and delays were necessary given the 'haphazard' and 'last-minute' nature of regulations issued under the Clinton Administration").
147. For a discussion of a classic example of this pattern, see infra notes 195-201, 205-07 and accompanying text.
148. See infra text accompanying notes 216-17.
149. For deep background on the modern administrative state, see generally Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667 (1975).
150. This model is commonly known as the "expertise" model.
151. See, e.g., Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U.L. REV. 461, 464 (2003).
152. (Noting that the "'expertise' model" posits that agencies "merely execute technocratic judgments").
153. For a discussion of this "transmission belt" model.
154. See generally Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001) (arguing that agencies are accountable to the president).
155. (Describing agency accountability under the presidential-control model).
156. See infra discussion accompanying notes 233-35.
157. For a discussion of Fox and the legitimacy of political motives for agency position changes, see infra Part III.C.2-3.
158. (Collecting sources that critique the presidential-control model as incomplete).
159. Indeed, the larger debate over the balance of power between outgoing and incoming presidents already exists.
160. See, e.g., SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION 98-101 (2006) (arguing that the time lapse between election day and inauguration day hurts political accountability).
161. Nina A. Mendelson, Quick off the Mark? In Favor of Empowering the President-Elect, 103 NW. U. L. REV. COLLOQUY 464, 464-66 (2009), http://www.law.northwestern.edu/lawreview/colloquy/2009/19/LRColl2009n19Mendelson.pdf (suggesting that more should be done to give an incoming president some political control during the transition).
162. ("Newspapers with national circulation, such [as] the New York Times, the Wall Street Journal, the Los Angeles Times, and the Washington Post reported on the details of [a Clinton midnight] rule and the Bush administration's response to it, the progress of lawsuits against the rule, and public reaction.").
163. (Giving a history and overview of regulatory review systems as well as their relation to midnight regulatory review).
164. ("[A]n incoming administration's withdrawal and suspension of [midnight] rules has become a familiar, if not inevitable, post-election phenomenon.").
165. (Noting that President Clinton's lateterm mining rules were "immediately" challenged in court).
166. See also Jim Rossi, Bargaining in the Shadow of Administrative Procedure: The Public Interest in Rulemaking Settlement, 51 DUKE L.J. 1015, 1039-43 (2001).
167. (Explaining that an incoming administration could handle the barrage of lawsuits over its predecessor's midnight rules by settling those cases).
168. For example, a midnight rule could be rescinded by Congress under the Congressional Review Act of 1996 (CRA), 5 U.S.C. § 802 (2006), a "blunt tool... [that] has only been used once" to overturn a midnight rule, Susan E. Dudley, Regulatory Activity in the Bush Administration at the Stroke of Midnight, ENGAGE, July 2009, at 27, 29. "From its enactment in 1996 through March 2008, agencies have submitted 731 major rules to Congress, and only one, the Clinton ergonomics rule, has been repealed under the CRA.".
169. Note, The Mysteries of the Congressional Review Act, 122 HARV. L. REV. 2162, 2169 (2009).
170. The Obama administration did not use it to undo any midnight regulations left by the Bush administration.
171. For a more in-depth analysis of the CRA review mechanisms, see generally Daniel Cohen & Peter L. Strauss, Congressional Review of Agency Regulations, 49 ADMIN. L. REV. 95 (1997).
172. Although not discussed here, there have been other suggestions for Congressional oversight of midnight regulations, including Representative Nadler's proposed Midnight Rule Act, H.R. 34, 111th Cong. (2009).
173. ("[R]eviewing late-term actions by the Clinton administration occupied a great deal of agency officials' time and energy in the early days of the administration.").
174. But see B.J. Sanford, Note, Midnight Regulations, Judicial Review, and the Formal Limits of Presidential Rulemaking, 78 N.Y.U.L. REV. 782, 784 (2003).
175. (Arguing that these suspension memoranda are illegal and should be struck down by the courts). There have been other suggestions for executive control.
176. (Proposing a limit on the number of rules that can be reviewed by the Office of Information and Regulatory Affairs within a prescribed period before a transition).
177. ("[O]n his first day in office President Obama directed his administration not to issue any new rules until his appointees had a chance to review them, to withdraw from publication any proposed or final rules that had been sent to the Federal Register but not yet published, and to consider extending the effective date of published rules that had not yet gone into effect....").
178. ("Presidents may already have sufficient tools to deal with midnight regulation, as demonstrated by action taken by the administrations of Presidents Ronald Reagan, Bill Clinton, George W. Bush, and Barack Obama to combat the midnight regulatory activity of their respective predecessors.").
179. See CURTIS W. COPELAND, CONG. RESEARCH SERV., RL34747, MIDNIGHT RULEMAKING: CONSIDERATIONS FOR CONGRESS AND A NEW ADMINISTRATION 7 (2008).
180. ("[F]or rules that have already been published in the Federal Register, the only way for the departments or agencies to eliminate or change the rules is by going back through the rulemaking process.").
181. (Suggesting such memoranda and giving a history of their use).
182. (Suggesting using memoranda that "suspend effective dates" of unfinished midnight rules).
183. ("The [Obama administration's] Emanuel and Orszag memoranda were only the latest in a long history of incoming presidential administrations imposing a moratorium on new regulations....").
184. Energy Conservation Program for Consumer Products: Energy Conservation Standards for Central Air Conditioners and Heat Pumps, 66 Fed. Reg. 7170 (Jan. 22, 2001) (codified at 10 C.F.R. pt. 430).
185. see also Natural Res. Def. Council v. Abraham, 355 F.3d 179, 202-03 (2d Cir. 2004) (holding that the rule was final and could not be reopened for comment).
186. Special Regulations, Areas of the National Park System, 66 Fed. Reg. 7260 (Jan. 22, 2001) (codified at 36 C.F.R. pt. 7).
187. see also Fund for Animals v. Norton, 294 F. Supp. 2d 92, 105-08 (D.D.C. 2003) (invalidating the Bush administration's modification of the Clinton administration's rule).
188. Hours of Service of Drivers, 73 Fed. Reg. 69,567 (Nov. 19, 2008) (codified at 49 C.F.R. pts. 385, 395).
189. See also Petition for Review at 1, Pub. Citizen v. Fed. Motor Carrier Safety Admin., No. 09-1094 (D.C. Cir. Mar. 09, 2009), available at http://www.citizen.org/documents/PetitionforReview1.pdf (challenging the driver-service-hour rule).
190. Currently, the case is in abeyance, as the Obama administration settled to start a new rulemaking. Joint Motion of Petitioners and Respondent to Hold Case in Abeyance Pending the Issuance of a New Notice of Proposed Rulemaking at 2, Pub. Citizen v. Fed. Motor Carrier Safety Admin., No. 09-1094 (D.C. Cir. Oct. 26, 2009).
191. See, e.g., David H. Becker, Changing Direction in Administrative Agency Rulemaking: "Reasoned Analysis," The Roadless Rule Repeal, and the 2006 National Park Service Management Policies, 30 ENVIRONS ENVTL. L. & POL'Y J. 65, 70 n.21 (2006).
192. ("[The] explanations for withdrawing a proposed regulation, a 'change in agency priorities,' was... 'not informative in the least; it is merely a reiteration of the decision to withdraw the proposed rule....'" (quoting United Mine Workers v. U.S. Dep't of Labor, 358 F.3d 40, 44 (D.C. Cir. 2004))).
193. see also infra notes 202-08 and accompanying text.
194. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
195. ("[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.").
196. Marianne Koral Smythe, Judicial Review of Rule Rescissions, 84 COLUM. L. REV. 1928, 1934 (1984).
197. ("The... statement in the State Farm opinion that may be a source of trouble stems from language to the effect that there is an implicit congressional endorsement of the regulatory status quo. Pursuant to this rationale, the only legitimate basis for rule rescissions would be a change in circumstances, not a change in policy....").
198. ("[T]he [State Farm] Court established a presumption in favor of the validity of a prior rule and 'against changes in current policy that are not justified by the rulemaking record.'" (quoting State Farm, 463 U.S. at 42)).
199. ("As a result of State Farm, it is possible that an incoming anti-regulatory administration faces more obstacles in repealing or amending midnight regulations that affect public health and safety than a pro-regulatory administration.").
200. ("There are no cases addressing presidential duties and obligations with respect to transition....").
201. ("If a midnight regulation is rescinded or modified, any challenge to the original regulation's timing is mooted.").
202. (Explaining that any issue of the president's power in the transition period will likely escape review because the "transition period is so short that the issue might be moot by the time it is ready for legal resolution").
203. But cf. Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 HASTINGS CONST. L.Q. 865, 992-96 (1994).
204. (Arguing that when a President refuses to execute a law as unconstitutional, he should ensure that the question is subjected to judicial review). This Note does not discuss whether rule changes might evade mootness under the voluntary cessation doctrine.
205. ("[A]n action... does not become moot merely because the conduct immediately complained of has terminated, if there is a sufficient possibility of a recurrence that would be barred by a proper decree.") Rather, this Note assumes, as do the scholars cited above, that the posttransition regulatory process does not count as a voluntary cessation that would preclude mootness.
206. For an overview of judicial review of administrative procedure in the midnight regulation context.
207. Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706 (2006).
208. see also Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 545-49 (1978) (holding that courts cannot require agencies to follow rulemaking procedures beyond those that the APA or another statute requires).
209. ("[T]he magic words 'on the record after opportunity for [a]... hearing' were typically sufficient to require agencies to undertake formal rulemaking procedures.... Because so few statutes contain the phrase, agencies generally do not conduct formal rulemakings when promulgating legally binding regulations." (second alteration in original) (quoting United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 236-38 (1973))).
210. 5 U.S.C. § 553(b)-(d). Though Section 553 mentions a "concise" statement, modern administrative law doctrine prompts agencies to produce extensive records, explanations, and responses to comments.
211. See, e.g., Jack M. Beermann & Gary Lawson, Reprocessing Vermont Yankee, 75 GEO. WASH. L. REV. 856, 899 (2007).
212. (Explaining that to avoid procedural deficiency, agencies "overproceduralize rulemaking by issuing... highly detailed proposed rules with voluminous supporting material, and by conducting additional comment periods whenever a significant change is warranted by the comments").
213. STEPHEN G. BREYER, RICHARD B. STEWART, CASS R. SUNSTEIN & ADRIAN VERMEULE, ADMINISTRATIVE LAW AND REGULATORY POLICY 566 (6th ed. 2006).
214. Cf. Wyoming v. USDA (Wyoming I), 277 F. Supp. 2d 1197, 1206 (D. Wyo. 2003), vacated as moot, 414 F.3d 1207 (10th Cir. 2005) (observing that an agency had to follow "a very short timeframe" to promulgate a rule before President Clinton left office).
215. (Suggesting that procedural "sloppiness" is characteristic of midnight rulemaking).
216. E.g., Wyoming I, 277 F. Supp. 2d at 1239 (stating that a rule's promulgation was "driven by political haste," "violated the [procedural requirements of the] National Environmental Policy Act and the Wilderness Act," and was therefore arbitrary and capricious under the APA).
217. (Describing twenty-five Bush administration midnight rules whose procedural validity has been challenged successfully).
218. See 5 U.S.C. § 706(2)(A) ("The reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.").
219. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). Over time, courts have broadened the scope of this holding beyond rule rescissions to cover all sorts of agency position changes.
220. (Explaining the expanded scope of the State Farm doctrine and collecting cases). Observers have seen this development as part of a body of administrative law that demands agencies act consistently and with reason.
221. (Explaining that the reason-and-consistency requirement is a "settled principle of administrative law" and providing its background).
222. State Farm, 463 U.S. at 41-42 (quoting Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 807-08 (1973)).
223. See also State Farm, 463 U.S. at 57 ("An agency's view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysis... [which] the agency has failed to supply...." (footnote omitted in original) (quoting Greater Bos. Television Corp. v. FCC, 444 F.2d 841, 852 (1970)) (internal quotation marks omitted)).
224. ("[T]he Court took the regulatory status quo as the baseline and reviewed whether the new administration had articulated a sufficient justification for making a change.").
225. See State Farm, 463 U.S. at 59 (Rehnquist, J., concurring in part and dissenting in part) ("The agency's changed view of the standard seems to be related to the election of a new President of a different political party.").
226. ("President Reagan took office with a clear (de)regulatory philosophy.").
227. See State Farm, 463 U.S. at 35-40 (providing the passive-restraint rule's history).
228. ("The decision to rescind was thus a political decision, made because the new administration had pronounced policy differences from the old. The decision to rescind also represented... a policy reversal. [Thus,] the government[] conten[ded] that rule rescissions should be narrowly reviewed and... treated like agency decisions not to act.").
229. State Farm, 463 U.S. at 55-57.
230. ("[T]he agency has failed to offer the rational connection between facts and judgment required to pass muster under the arbitrary-and-capricious standard.").
231. (Arguing that the State Farm majority viewed the political reasons for the rescission as not "justified by the rulemaking record" but not inherently unacceptable (quoting State Farm, 463 U.S. at 42)).
232. State Farm, 463 U.S. at 59 (Rehnquist, J., concurring in part and dissenting in part) (footnote omitted).
233. ("[State Farm] can be viewed as requiring agencies seeking to rescind regulations to meet a more stringent evidentiary burden than would be required if the agency were promulgating a rule in the first instance.").
234. (Surveying federal appellate cases that invalidated rule changes under this heightened burden).
235. ("[P]rior administrative action can tie a new President's hands more than if the President had to worry only about whether administrative action complies with applicable statutes.").
236. (Arguing that the State Farm Court "implicitly rejected" a justification for agency position changes "centered on the political leadership and accountability provided by the President").
237. (Explaining that a new president will take office wanting to change midnight rules that conflict with his "policy agenda").
238. For example, President Bush tried undoing the Clinton administration's last rules.
239. President Obama attempted the same for the Bush administration's midnight rules.
240. (Cataloguing the Obama administration's efforts to undo the Bush administration's midnight regulations).
241. Cindy Skrzycki, Obama Team Tracks Bush's 'Midnight' Rules Rush, BLOOMBERG (Nov. 11, 2008, 00:00 EST), http://www.bloomberg.com/apps/news?pid=20670001&sid=aq8Q2ZkT1fsw (same).
242. ("Although State Farm is the leading case on agency change of direction in rulemaking, the Court has analyzed regulatory revisions in several other cases without conclusively stating how persuasive an agency's explanation of a change of course must be to survive judicial review.").
243. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1809-10 (2009). Although not a midnight rulemaking case, the Supreme Court's recent interpretation of the State Farm arbitrary-and-capricious standard, id. at 1810-11, may signal a shift regarding what counts as a valid justification for changed agency positions.
244. ("[T]he precise policy change at issue here was spurred by significant political pressure from Congress.") Since 1975, the FCC's policy had been that nonrepeated, or fleeting, expletives did not violate federal law banning the broadcast of indecent language. But in 2004, the FCC changed its policy so that even a single aired expletive could be actionably indecent.
245. For a discussion of how the FCC's decision was the culmination of the Bush administration's efforts to change aired indecency policy, see Albert W. Vanderlaan, Note, Sending a Message to the Other Branches: Why the Second and Third Circuits Properly Used the APA to Rule on Fleeting Expletives and How the New FCC Can Undo the Damage, 34 VT. L. REV. 447, 459-63 (2009).
246. Fox, 129 S. Ct. at 1807-08.
247. (Quoting Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (emphasis added in original)).
248. Moreover, "the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate.".
249. (Arguing that State Farm would significantly burden a new administration wishing to reverse policy from its predecessor, requiring "much more" in the record to justify policy changes after a transition).
250. ("[State Farm] suggests that the regulatory status quo that includes the unrescinded regulation is presumptively in accord with congressional policy, making changes in that status quo presumptively ultra vires....").
251. (Commenting on the necessity of an agency providing an explanation for its decision).
252. (Summarizing the mixed bag of lower court holdings applying the State Farm standard).
253. (Describing the State Farm standard as a steep evidentiary barrier).
254. ("State Farm's 'reasoned analysis' standard places an apparently light burden on an agency to explain a change of course.").
255. (Describing State Farm's "difficulties" with respect to rescinding midnight regulations).
256. (Arguing that State Farm prevents incoming presidents from acting upon midnight regulations).
257. (Arguing that State Farm's arbitrary-and-capricious standard does not account for presidential political control of the regulatory process).
258. (Suggesting reevaluation of State Farm arbitrary-and-capricious review in the midnight rulemaking context to allow incoming administrations to reverse the previous administration's late-term regulations).
259. ("[The Court should] either lower or eliminate the State Farm standard as it is applied to midnight regulations. This would make it easier for the incoming administration to repeal and amend an outgoing administration's midnight regulations, providing valuable oversight while avoiding the pitfall of bias.").
260. ("[S]tandards of judicial review... [should] take better account of the role that policy plays in the administrative process. Perhaps the [State Farm] Court was wrong in its choice of the prior regulatory regime as the baseline for evaluating new rules.").
261. (Arguing that courts should acknowledge political motives).
262. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811 (2009).
263. ("It suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.").
264. For a discussion of incoming presidents' motives for changing unfinished midnight rules.
265. E.g., Khodara Envtl., Inc. ex rel. Eagle Envtl. L.P. v. Beckman, 237 F.3d 186, 194-95 (3d Cir. 2001) (noting that Supreme Court precedent has not established a categorical rule).
266. Cf. Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346, 353 (D.C. Cir. 1997) (noting that after a rule change moots a case, "the executive branch is in a position akin to a party who finds its case mooted on appeal by 'happenstance,' rather than events within its control").
267. Cf. Cammermeyer v. Perry, 97 F.3d 1235, 1239 (9th Cir. 1996) (denying vacatur because the government rescinded its rule after losing in court).
268. For a discussion of how recent incoming administrations have automatically suspended, reversed, and revised an outgoing administration's unfinished rules.
269. (Describing the midlitigation settlement between the Obama administration and plaintiffs contesting the Bush administration's trucker rules).
270. (Explaining that settlements can "effectively reverse" midnight rules).
271. (Discussing the implications of settlement for midnight rules).
272. See U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 29 (1994) ("[M]ootness by reason of settlement does not justify vacatur of a judgment under review.").
273. See also Bonner Mall, 513 U.S. at 29 (holding that although settlement generally bars vacatur, "[t]his is not to say that vacatur can never be granted when mootness is produced in that fashion").
274. See, e.g., Khodara Envtl., Inc. ex rel. Eagle Envtl. L.P. v. Beckman, 237 F.3d 186, 194-95 (3d Cir. 2001) (analyzing the Supreme Court's decision in Munsingwear and its implications for a categorical rule); Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346, 353 (D.C. Cir. 1997) ("[T]he Bancorp presumption against vacatur might apply if the case has been rendered moot on appeal by enactment or repeal of a regulation....").
275. See, e.g., Wyoming v. USDA (Wyoming II), 414 F.3d 1207, 1213 (10th Cir. 2005) (analyzing the motive for repealing the roadless rule).
276. See FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1810 (2009) (holding that there is no "requirement that all agency change be subjected to more searching review"); cf. Khodara, 237 F.3d at 195 (refusing to question a legislature's motive for rescinding a rule that mooted the case).
277. (Describing the "difficulties" that State Farm created for rule rescissions following political transitions).
278. ("[A]n incoming administration's withdrawal and suspension of... [midnight] rules has become a familiar, if not inevitable, post-election phenomenon.").
279. ("[M]idnight regulation is inevitable.").
280. Wyoming v. USDA (Wyoming II), 414 F.3d 1207, 1213 (10th Cir. 2005).
281. Tafas v. Kappos, 586 F.3d 1369, 1371 (Fed. Cir. 2009) (en banc).
282. For a discussion of the presidential-control model.
283. See FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811 (2009) (requiring only that the agency be "aware[]" that it has changed position and give "good reasons" for doing so).
284. Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346, 353 (D.C. Cir. 1997) ("[In] 19 Solid Waste Department Mechanics [v. City of Albuquerque, 76 F.3d 1132 (10th Cir. 1996),]... Albuquerque admitted that it had adopted the new policy in response to the district court's decision enjoining the existing policy as unconstitutional....").
285. See, e.g., Cammermeyer v. Perry, 97 F.3d 1235, 1239 (9th Cir. 1996) ("[T]he decision to vacate is not to be made mechanically, but should be based on equitable considerations." (citing U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 24-25 (1994))).
286. See, e.g., Nat'l Black Police Ass'n, 108 F.3d at 351-54 (stating that vacatur should only be granted when it serves the public interest and acknowledging the presumed legitimacy of law change by legislative action).
287. Khodara Envtl., Inc. ex rel. Eagle Envtl., L.P. v. Beckman, 237 F.3d 186 (3d Cir. 2001).
288. (Quoting Am. Library Ass'n v. Barr, 956 F.2d 1178, 1187 (D.C. Cir. 1992)).
289. Nat'l Black Police Ass'n, 108 F.3d at 352.
290. See United States v. Winstar Corp., 518 U.S. 839, 872-73 (1996) (plurality opinion) (explaining the concept of legislative sovereignty and its English roots).
291. ("[A]lthough we have recognized that 'a general law... may be repealed, amended or disregarded by the legislature which enacted it,' and 'is not binding upon any subsequent legislature,' on this side of the Atlantic the principle has always lived in some tension with the constitutionally created potential for a legislature, under certain circumstances, to place effective limits on its successors, or to authorize executive action resulting in such a limitation." (second alteration in original) (footnote omitted) (citation omitted) (quoting Manigault v. Springs, 199 U.S. 473, 487 (1905))).
292. See, e.g., Nat'l Black Police Ass'n, 108 F.3d at 353 (suggesting that when legislative action moots a case, "the executive branch is in a position akin to a party who finds its case mooted on appeal by 'happenstance,' rather than events within its control").
293. See, e.g., Tafas v. Kappos, 586 F.3d 1369, 1371 (Fed. Cir. 2009) (en banc) ("[I]t was the USPTO (the losing party in the district court action) that acted unilaterally to render the case moot, and vacatur is not appropriate.").
294. see also Cammermeyer v. Perry, 97 F.3d 1235, 1239 (9th Cir. 1996) ("'The principal condition to which we have looked is whether the party seeking relief from the judgment below caused the mootness by voluntary action." (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 24 (1994))).
295. For an overview of cases addressing the vacatur for mootness doctrine.
296. For an overview of the Supreme Court's vacatur-for-mootness jurisprudence.
297. For further discussion of the shift in the justification for agency position change from State Farm scrutiny to Fox's relaxed standard.
298. For discussion of the confusion among lower courts about the application of vacatur doctrine to rule-change mootness.
299. For a discussion of action taken by incoming presidents in response to unfinished midnight regulations.
300. See, e.g., Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346, 352 (D.C. Cir. 1997) ("[L]egislative actions are presumptively legitimate....").
301. See, e.g., Cammermeyer v. Perry, 97 F.3d 1235, 1239 (9th Cir. 1996) (noting that the fact that the defendant agency "rendered this case moot by conceding that Cammermeyer should be reinstated and by replacing the challenged regulation" counseled against vacatur); 19 Solid Waste Dep't Mechs. v. City of Albuquerque, 76 F.3d 1142, 1244 (10th Cir. 1996) (denying vacatur because the defendant City of Albuquerque changed its rule in response to losing in the district court).