Midnight regulations and regulatory review

Administrative Law Review

Volumn 61, Issue 1, 2009, Pages 163-196

  Brito, Jerry ^a   Rugy, Veronique De ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 78649372693     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (203)

1. JAMES P. PFIFFNER, THE STRATEGIC PRESIDENCY 5 (1996);
2. see also Carl M. Cannon, The Long Goodbye, 33 NAT'L J. 274 (2001) (citation omitted) (recanting the final regulatory actions of the Clinton Administration).
3. A Rush to Regulate-The Congressional Review Act and Recent Federal Regulations: Hearing Before the Subcomm. on Energy Policy, Natural Resources and Regulatory Affairs of the H. Comm. on Government Reform, 107th Cong. 38, 43 (2001) (statement of Marshall E. Whitenton, Vice President, National Association of Manufacturers)
4. Jack Fans, Small Business Focus: Watch Out for 'Midnight Regulation,' NFIB, Aug. 21,2000, http://www.nfib.com/object/1609860.html.
5. Susan E. Dudley, Reversing Midnight Regulations, 24 CATO REV. OF BUS. & GOV'T 9 (2001), available at http://www.cato.org/pubs/regulation/regv24nl/ dudley.pdf;
6. Susan E. Dudley, Midnight Regulations at All-Time High, INTELL. AMMUNITION, Mar. 1, 2001, http://www.heartland.org/Article.cfm?artld=99.
7. Dudley, Reversing Midnight Regulations, supra note 4, at 9.
8. Id.
9. See GARY L. GALEMORE, CONG. RESEARCH SERV., FEDERAL REGULATORY REFORM 8 (2003), available at http://Avww.policyarchive.org/bitstream/handle/10207/1312/ RL31207-20030129.pdf?sequence=1 (specifying that Bush's moratorium "exempted regulations issued by independent regulatory boards and commissions, as well as those regulations issued in response to emergency situations or statutory or judicial deadlines").
10. See Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 VA. L. REV. 889, 890 (2008) (adding that the proposal was never finalized and was quickly scrapped by the Clinton Administration).
11. Jay Cochran III, The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters (Mercatus Ctr. at George Mason Univ., Working Paper, 2001), http://www.mercatus.org/PublicationDetails.aspx?id= 17546.
12. See id. at 11 (demonstrating at least some evidence of a tendency toward midnight regulations).
13. Id. at 15.
14. Id. at 4;
15. Jack M. Beermann, Presidential Power in Transitions, 83 B.U. L. REV. 947,955-60 (2003) (expanding on the Cinderella constraint).
16. Cochran, supra note 9, at 4.
17. Antony Davies & Veronique de Rugy, Midnight Regulations: An Update (Mercatus Ctr. at George Mason Univ., Working Paper No. 08-06, 2008), http://www.mercatus.org/uploadedFiles/Mercatus/PublicationsAVP0806-RSP- Midnight%20Reg ulations.pdf.
18. The authors based this calculation on the number of pages in the Federal Register.
19. Id. at 4.
20. Mat 5.
21. Id. at 3.
22. Id. at 3-4.
23. Id. at 4.
24. See William G. Howell & Kenneth R. Mayer, The Last One Hundred Days, 35 PRESIDENTIAL STUD. Q. 533, 534 (2005) (citing loss of public prestige and professional reputation as factors contributing to the diminished presidential power).
25. See id. (insisting that the President has "important policy options outside of the legislative process" and to ignore these options underestimates the influence and power the President wields during the final months in office).
26. Id.
27. Id.
28. Id. at 533.
29. Id.
30. Andrew P. Morriss et al., Between a Hard Rock and a Hard Place: Politics, Midnight Regulations and Mining, 55 ADMIN. L. REV. 551, 557 (2003).
31. See id. (stating that the outgoing administration has incentive to finish its regulatory business before leaving office).
32. Dudley, Reversing Midnight Regulations, supra note 4, at 9.
33. See id. at 9 (noting that the "new administration's options for overturning midnight regulations are 'constrained'").
34. Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives, 78 N.Y.U. L. REV. 557, 601 (2003).
35. Id. at 602.
36. Howell & Mayer, supra note 20, at 544.
37. See Mendelson, supra note 30, at 602 (citing the Bush suspension of the Clinton arsenic rule as an example of a "booby trap" laid by an outgoing president, leading to acute criticism of President Bush's attitude toward the environment).
38. Howell & Mayer, supra note 20, at 544.
39. Mendelson, supra note 30, at 602.
40. Morriss et al., supra note 26, at 558.
41. Beermann, supra note 12, at 956.
42. Id.
43. Id. at 958.
44. Id.
45. See Dudley, Reversing Midnight Regulations, supra note 4, at 9 ("Some of these new regulations may have been developed carefully over many years, and only just now emerged from the procedural pipeline.").
46. Beermann, supra note 12, at 956.
47. See id. (arguing that while there are many reasons for delay, simple procrastination is "surely one explanation").
48. Id. at 956.
49. Id. at 956-57.
50. Id. at 957.
51. Howell & Mayer, supra note 20, at 544.
52. Id.
53. Id.
54. See Douglas Jehl, E.P.A. Delays Its Decision on Arsenic, N.Y. TIMES, Apr. 19, 2001, at A14 (describing the Bush Administration's efforts to suspend President Clinton's ten-parts-per-billion arsenic standard and postpone a decision on acceptable arsenic levels until February, effectively leaving the 1942 standard of fifty-parts-per-billion in place until at least early 2002).
55. See Bush U-Turn on Arsenic Rule, CBSNEWS.COM, Oct. 31, 2001, http://www.cbsnews.com/stories/2001/10/31/politics/main316574.shtml (reporting that the Bush Administration reversed course and would accept the Clinton Administration's ten-parts-per-billion arsenic rule).
56. 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 (2005).
57. Id. at 1456.
58. Id.
59. See Edward Cowan, Administration to Kill or Put Off 36 Carter 'Midnight Regulations,' N.Y. TIMES, Mar. 26, 1981, at A1 (noting that Vice President Bush announced the government was "killing or indefinitely postponing" numerous midnight regulations imposed by the Carter Administration that had substantial impacts in health care, the environment, and the economy);
60. Here Come Ronald Reagan's 'Midnight' Regs, U.S. NEWS & WORLD REP., NOV. 28, 1988, at 11 (characterizing the Reagan Administration's agenda with last-minute regulations as "too hot to handle" and controversial);
61. Robert A. Rosenblatt & Elizabeth Shogren, Clinton Readies an Avalanche of Regulations, L.A. TIMES, Nov. 26, 2000, at Al (suggesting that after a close and bitter election, outgoing President Clinton was determined to leave a lasting impression through midnight regulations on controversial topics that "left some Republican lawmakers fuming");
62. R. Jeffrey Smith, A Last Push to Deregulate, WASH. POST, Oct. 31, 2008, at Al (noting the White House's efforts to enact a slew of last-minute regulatory activity);
63. Editorial, Last-Minute Mischief, N.Y. TIMES, Oct. 18, 2008, at A22 (criticizing in the numerous last-minute environmental rules of the Bush Administration);
64. Emma Schwartz, The Bush Administration's Midnight Regulations, ABCNEWS.COM, Oct. 30, 2008, http://www.abcnews.go.com/print?id=6146929 (surveying President Bush's last-minute rules on the environment, health care, occupation safety, and other areas).
65. See Loring & Roth, supra note 52, at 1446 (recognizing that during the midnight period, the outgoing administration no longer is subject to "traditional political constraints" such as voter satisfaction, and thus is unaccountable to the public, giving it "little incentive to avoid costly measures");
66. Morriss et al., supra note 26, at 558 (asserting that accountability is lost because of "political constraints on agency heads such as budgetary concerns, congressional oversight, political appointees' concern with their reputations, and personal performance measures absent in the period between the election and the new administration");
67. William S. Morrow, Jr., Midnight Regulations: Natural Order or Disorderly Governance, 26 ADMIN. & REG. L. NEWS 3 (2001) (expressing Judge Plager's view that one of the three major problems with midnight regulation is that it "undermines political accountability").
68. See Morriss et al., supra note 26, at 557-58 (explaining that "Congress is often out of session after the elections" with the exception of a "brief 'lame duck' session," and if political control of Congress "shift[s] with the election," many committee chairs will change, lessening the opportunity for oversight).
69. Id. at 556-57.
70. See id. (recognizing that long-term consequences of a decision may lessen the impact of its potential immediate benefit).
71. See id. at 557-58 (observing that a change in administration that includes a change in political party minimizes the possibility of future interactions, creating more "incentive to defect").
72. But see id. (explaining that when an administration changes but party control remains the same, agencies and employees can hope for future employment and thus have stronger incentive to cooperate). A two-term president might also be constrained until after the election because a controversial regulatory initiative might affect the campaign of his party's nominee to succeed him. However, once the election is decided, that constraint is removed
73. According to Morriss and his coauthors, the incentive to defect is strongest when the incoming president is of the opposite party because "the outgoing administration has little incentive to leave unfinished business for the incoming administration" whose policies will likely be contrary.
74. Id. at 557.
75. See Kelly Wallace, Former President Bush Granted Last-Minute Pardon to Contributor's Son, CNN.COM, Mar. 7, 2001, http://archives.cnn.com/200 l/ALLPOLITICS/03/07/bush.pardon/index.html (identifying the pardons granted by President Clinton to Marc Rich, a wealthy donor to the Democratic Party and the Clinton campaign, and President Bush to Edwin Cox, Jr., whose family donated generously to the Republican Party and the Bush campaigns).
76. See generally P.S. Ruckman, Jr., "Last-Minute" Pardon Scandals: Fact and Fiction (Paper presented at the Annual Meeting of the Midwest Political Science Association, Apr. 15, 2004), http://www.rvc.cc.il.us/faclink/ pruckman/pardoncharts/Paper2.pdf (comparing the use of pardons by a variety of presidents throughout their administrations to the amount of pardons issued at the end of their administrations).
77. See Mendelson, supra note 30, at 599 (noting that the "worst case" scenario concerning midnight regulations is when the regulations by the outgoing administration hinder the president-elect's ability to implement a new and different policy, and that this abuse of power could be considered as "undermining our democratic regime").
78. For example, Mendelson explains that the Clinton Department of Justice (DOJ) changed procedural rules that gave former DOJ employees the power to access work documents, but did so in the last few days of the Administration. Mendelson, supra note 30, at 600; see also Beermann, supra note 12, at 951-52 (concluding that when rules are imposed only at the end of a presidency, especially in the form of procedural constraints, it is evident that the administration had not found these rules necessary during its term and thus the only reasonable explanation for the promulgation was to "tie the hands of the successor").
79. See Beermann, supra note 12, at 951 (explaining that this often includes rules issued in areas such as abortion or the environment).
80. Id. at 951.
81. See id. at 951, 972 (arguing that waste occurs when "the new administration must dig itself out from under the remains of the outgoing administration, especially when the outgoing administration knows that this is inevitable" and that an outgoing president should recognize when the incoming president will have a new agenda and step aside to prevent waste of government funds on an "obviously futile endeavor"). Efficiency and waste are one of three concerns over midnight regulations identified by Judge Plager. See Morrow, supra note 56, at 3 ("[Plager] believes the ramming of regulations on the way out and the attempt to neutralize them on the way in amounts to an enormous waste of time and effort for both administrations.") .
82. Beermann, supra note 12, at 951.
83. Morrow, supra note 56, at 3.
84. Id.
85. Mendelson, supra note 30, at 564.
86. See generally Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Oct. 4, 1993), amended by Exec. Order No. 13,258, 67 Fed. Reg. 9385 (Feb. 28, 2002) and Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 23, 2007) (requiring agencies to perform a cost-benefit analysis, including both quantitative and qualitative measures of available regulatory alternatives and the option of no regulation); OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, CIRCULAR A-4, REGULATORY ANALYSIS (2003), http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf (providing guidance for regulatory analysis, including a standardization for measuring and reporting costs and benefits).
87. See Curtis W. Copeland, The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking, 33 FORDHAM URB. L.J. 1257, 1273-74 (2006) ("At the end of the review period, OIRA either returns the draft rule to the agency 'for reconsideration' or OIRA concludes that the rule is consistent with the executive order.").
88. See Morrow, supra note 56, at 3 ("[Judge Plager] also believes presidential oversight tends to get lost in the process.").
89. See GEORGE C. EADS & MICHAEL FIX, RELIEF OR REFORM? 46 (1984) ("Many of the procedures and institutional arrangements that would later be employed by Presidents Ford, Carter, and Reagan trace their origins to decisions made in 1971 by the Nixon administration."); Murray Weidenbaum, Regulatory Process Reform: From Ford to Clinton, REG., Winter 1997, at 20 (noting that Nixon's reforms, which required agencies to consider regulatory alternatives and their costs, were the "precursor of all modern reform efforts").
90. See EADS & Fix, supra note 76, at 46-47 (explaining that when the EPA was created, it began to "spew forth" new regulations so quickly and in such large numbers that implementing the regulations led to serious budgetary and policy consequences).
91. Id. at 47.
92. Id. at 48.
93. Id.
94. See id. (noting the development of the Quality of Life Review process).
95. See Memorandum from George P. Schultz, Director, Office of Mgmt. and Budget, to Heads of Departments and Agencies (Oct. 5, 1971) [hereinafter Schultz Memo], http://www.thecre.com/ombpapers/QualityofLifel.htm (ordering agencies to submit proposed regulations to the Office of Management and Budget (OMB) for review before the regulations are formally announced).
96. Id.
97. A "significant" rule was defined as a rule that would have a significant impact on the policies, programs, and procedures of other agencies; or impose significant costs on, or negative benefits to, non-Federal sectors; or increase the demand for Federal funds for programs of Federal agencies which are beyond the funding levels provided for in the most recent budget requests submitted to the Congress.
98. Id.
99. Id.
100. See id. (establishing a process for circulating proposed regulations for agency comment); see also EADS & Fix, supra note 76, at 48 (describing OMB's role in soliciting comments on proposed regulations).
101. See EADS & Frx, supra note 76, at 49 (discussing the interaction between agencies during the Quality of Life Review process).
102. See id. (noting the White House's involvement in the regulatory review process).
103. See generally id. at 54 (discussing the Carter Administration's approach to regulatory review).
104. See Weidenbaum, supra note 76, at 20 (noting that concerns about inflation affected President Ford's regulatory reforms).
105. EADS & FDC, supra note 76, at 51; see also Weidenbaum, supra note 76, at 20 (describing the founding of the Council on Wage and Price Stability (CWPS) and its role in the regulatory review process).
106. See Weidenbaum, supra note 76, at 20.
107. Id.
108. See EADS & Fix, supra note 76, at 51-52 (discussing the development of formal analysis of the economic effects of proposed regulations); Weidenbaum, supra note 76, at 20 (noting that CPWS reviewed proposed regulations to determine their effect on competition and productivity).
109. EADS & FK, supra note 76, at 55-56; Weidenbaum, supra note 76, at 20.
110. See Exec. Order No. 12,044, 3 C.F.R. 152,154 (1979) (directing that regulations be as simple and clear as possible and not impose unnecessary burdens on the economy or individuals).
111. Compare Exec. Order No. 12,044, 3 C.F.R. 152 (1979), with Exec. Order No. 11,821,39 Fed. Reg. 41,501 (Nov. 29,1974), and Schultz Memo, supra note 82.
112. Exec. Order No. 12,044,3 C.F.R. 152,154 (1979).
113. Id.
114. See 5 U.S.C. § 602 (2006) (requiring agencies to publish a semiannual regulatory flexibility agenda); Weidenbaum, supra note 76, at 21 (describing the role of the Regulatory Council in preparing semiannual reviews).
115. See 44 U.S.C. § 3501 (2000) (minimizing the paperwork burden on groups that are required to submit information to the federal government).
116. 44 U.S.C. § 3503 (2000).
117. See 44 U.S.C. § 3504 (2000) (outlining the authority of the Director of OMB to take steps to improve the efficiency of the collection of information from and the dissemination of information to the public).
118. Exec. Order No. 12,291, 3 C.F.R. 127,128 (1982).
119. See id. at 128-30 (outlining the Regulatory Impact Analysis requirements).
120. Although "major rule" was defined in § 1(b) as a rule having an annual impact on the economy of $100 million or more, in § 3(b) the Director is given authority, subject to the direction of the taskforce, to treat other rules as major rules as well. Id. at 127-28.
121. See id. at 128 (giving the Director of OMB the authority to develop standards for preparing a Regulatory Impact Analysis, develop procedures for evaluating agency estimates, and monitor agency compliance);
122. CURTIS W. COPELAND, CONG. RESEARCH SERV., FEDERAL RULEMAKING: THE ROLE OF THE OFFICE OF INFORMATION AND REGULATORY AFFAIRS 4 (2004) (describing how OIRA became involved in the regulatory review process).
123. Weidenbaum, supra note 76, at 22.
124. See COPELAND, supra note 107, at 3 (listing responsibilities of the newly created taskforce including "(1) monitoring the establishment of OMB's responsibility to coordinate and review new rules, (2) the development of legislative changes to regulatory statutes, and (3) the revision of existing regulations").
125. EADS & FDC, supra note 76, at 48-50. The White House staff and the President were often the mediators. On at least one occasion, administration officials who took different sides of a proposed regulation lobbied President Carter himself. The initial result was confusion because after their respective meetings each side thought they had persuaded the President.
126. Id at 58-59.
127. Weidenbaum, supra note 76, at 22.
128. See generally COPELAND, supra note 107, at 9-10 (discussing OIRA and the George H.W. Bush Administration); Weidenbaum, supra note 76, at 23.
129. COPELAND, supra note 107, at 10; Weidenbaum, supra note 76, at 23.
130. Weidenbaum, supra note 76, at 24.
131. Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Oct. 4, 1993).
132. See id. at 51,742 (mandating that "OIRA may review only actions identified by the agency or by OIRA as significant regulatory actions").
133. Id. at 51,738.
134. See COPELAND, supra note 107, at 12 (charting the significant drop in rules reviewed under Executive Order 12,866 and noting that the number of rules that OIRA examined fell from about 2,000-3,000 per year under Executive Order 12,291 to about 500-700 rules per year under Executive Order 12,866).
135. Exec. Order No. 12,866, 58 Fed. Reg. 51,736 (Oct. 4, 1993).
136. Id. at 51,735.
137. Exec. Order No. 13,422, 72 Fed. Reg. 2763 (Jan. 23, 2007); see also COPELAND, supra note 107, at 3-4 (outlining changes made by Executive Order 13,422).
138. Exec. Order No. 13,422,72 Fed. Reg. 2763 (Jan. 23,2007) (emphasis added).
139. To conclusively prove this would require judging every OIRA-produced regulatory review issued during each period from November 8th to January 20th of the last twenty-seven years against objective criteria-a massive undertaking. We instead opt to make the case through circumstantial evidence and deductive reasoning.
140. See OFFICE OF MGMT. & BUDGET, EXEC OFFICE OF THE PRESIDENT, APPENDIX TO THE BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 1983, at 1-C7 (1982) (listing OIRA's actual 1981 budget as $4,332,000); OFFICE OF MGMT. & BUDGET, EXEC OFFICE OF THE PRESIDENT, APPENDIX TO THE BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 2009, at 1058 (2008) (listing OIRA's actual 2007 budget as $7 million).
141. See OFFICE OF MGMT. & BUDGET, EXEC OFFICE OF THE PRESIDENT, APPENDIX TO THE BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 2006, at 982 (2005) (listing OIRA's actual 2004 budget as $8 million); OFFICE OF MGMT. & BUDGET, EXEC OFFICE OF THE PRESIDENT, APPENDIX TO THE BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 2008, at 966 (2007) (listing OIRA's actual 2006 budget as $8 million)
142. Adjusted for inflation, $7 million is equivalent to S2.9 million in 1981 dollars. Bureau of Labor Statistics Inflation Calculator, http://www.bls.gov/data/inflation-calculator.htm (last visited Oct. 17,2008).
143. See OFFICE OF MGMT. & BUDGET, EXEC OFFICE OF THE PRESIDENT, STIMULATING SMARTER REGULATION: 2002 REPORT TO CONGRESS ON THE COSTS AND BENEFITS OF REGULATIONS AND UNFUNDED MANDATES ON STATE, LOCAL, AND TRIBAL ENTrriES 30-31 (2002), http://www.whitehouse.gov/omb/inforeg/2002-report-to- congress.pdf (reporting staffing figures for OIRA from 1981 through 2003)f E-mail from John F. Morrall III, Branch Chief for Health, Transp., and Gen. Gov't in the Office of Info, and Regulatory Affairs of the Office of Mgmt. and Budget (July 3, 2008, 12:23:21 EDT) (providing OIRA staffing data for the 2004-2008 period).
144. This graph was compiled using the Appendices to the Budgets of the United States Government. See, e.g., OFFICE OF MGMT. & BUDGET, EXEC OFFICE OF THE PRESIDENT, APPENDIX TO THE BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 1983 (1982); OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, APPENDIX TO THE BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 2009 (2008) (providing OIRA's actual budget from 1981 to 2007).
145. Quarterly figures generated using OIRA's online "review counts" database. See RegInfo.gov, Review Counts, http://www.reginfo.gov/public/do/ eoCountsSearchInit?action=init (last visited Jan. 21,2009).
146. Number of yearly significant regulations derived from OIRA's online "review counts" database. Id. The OIRA budget derived from Appendices to the Budgets of the United States for Fiscal Years 1983 through 2009. See, e.g., OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, APPENDIX TO THE BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 1983 (1982); OFFICE OF MGMT. & BUDGET, EXEC OFFICE OF THE PRESIDENT, APPENDIX TO THE BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 2009 (2008).
147. See RegInfo.gov, Review Counts, http://www.reginfo.gov/public/do/ eoCountsSearchInit?action=init (last visited Jan. 21, 2009) (allowing users to enter specific dates and determine OIRA reviewing statistics).
148. See generally Patrick A. McLaughlin, Empirical Tests for Midnight Regulations and Their Effect on OIRA Review Time (Mercatus Ctr. at George Mason Univ., Working Paper No. 08-40, 2008), available at http://www.mercatus.org/ PublicationDetails.aspx?id=22854.
149. Id. at 25-26.
150. Id. at 25.
151. Id. at 21-22,25.
152. Id. at 31-32.
153. Id. at 14.
154. Id. at 21,25.
155. 5 U.S.C. § 552(a)(1)(D) (2006).
156. Id. § 553(d).
157. Id.
158. See generally William M. Jack, 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, 1488-97 (2002) (using as an example Kennecott Utah Copper Corp. v. Dep't of Interior, 88 F.3d 1191 (D.C.Cir. 1996)).
159. Beermann, supra note 12, at 982-83.
160. See Jack, supra note 142, at 1503-11 (explaining, inter alia, that while the effective dates of rules may be delayed for good cause, they cannot be delayed indefinitely, and that courts will likely be skeptical of a simultaneous across-the-board claim of good cause by a large number of agencies).
161. See generally Peter D. Holmes, Paradise Postponed: Suspensions of Agency Rules, 65 N.C. L. REV. 645 (1987) (outlining the history of suspension of agency regulations). Whether delay of effective dates is legally problematic or not, the fact remains that Presidents Reagan and George W. Bush (each one a president who took over from the opposite party) have ordered the preceding administration's rules delayed as a first order of business. Jack, supra note 142, at 1482-83 & n. 11.
162. See Exec. Order No. 12,291, 3 C.F.R. 127, 131-32 (1982) ("[A]gencies shall⋯ suspend or postpone the effective dates of all major rules that they have promulgated in final form as of the date of this Order, but that have not yet become effective ⋯").
163. Id. at 131.
164. Id. at 132.
165. Regulatory Review, 58 Fed. Reg. 6074 (Jan. 25, 1993).
166. Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702 (Jan. 24, 2001).
167. Memorandum from Rahm Emanuel, White House Chief of Staff, to Heads of Executive Departments and Agencies (Jan. 20, 2009), available at http://media.washmgtonpost.com/wp-srv/politics/documents/emanuel-regulatory- review.pdf.
168. See 5 U.S.C. § 801 (2006) (outlining a process by which federal agencies must submit copies of proposed rules to each chamber of Congress, as well as cost-benefit analyses to the Comptroller General, before rules become effective).
169. See Daniel Cohen & Peter L. Strauss, Congressional Review of Agency Regulations, 49 ADMIN. L. REV. 95, 100-01 (1997) (explaining the expediting nature of the Act).
170. 5 U.S.C. § 801(a)(1)(A) (2006).
171. Id. § 802(a).
172. Cohen & Strauss, supra note 152, at 102; see also 5 U.S.C. § 801(f) ("Any rule that takes effect and later is made of no force or effect by enactment of a joint resolution under section 802 shall be treated as though such rule had never taken effect.").
173. 5 U.S.C. § 801(b)(2).
174. See Julie A. Parks, Comment, Lessons in Politics: Initial Use of the Congressional Review Act, 55 ADMIN. L. REV. 187, 199 (2003) (arguing that the repeal of the Clinton Occupational Safety and Health Administration (OSHA) ergonomics standard-the only time the Congressional Review Act (CRA) has been used-could only have occurred because the new President and Congress were of the same party).
175. See id. at 192-94 (detailing the action taken by Congress regarding the contentious OSHA ergonomics regulation).
176. See id. at 197-99 (outlining the strategy for using CRA to fight the ergonomics standard).
177. See Cohen & Strauss, supra note 151, at 99 (describing procedures established under 5 U.S.C. § 802).
178. See Morriss et al., supra note 26, at 594-95 ("[W]hen a rule's impacts are concentrated in a particular region or on a particular industry, there may not be sufficient political support to change the rule."). A package approach would be similar to strategies employed by Congress to shut down military bases. While Congress can recognize a glut of bases (and the need to close some), individual state delegations will oppose closing the military base in their area. To address this collective action problem, Congress enacted the Base Closure and Realignment Act: Under this act, a federal advisory committee, known as the Base Closure Commission, was required to develop a recommended list of bases to be closed or realigned. This list would then be submitted as a package to Congress for review. The act required Congress to consider the Commission's list as a single package; Congress could not alter or delete specific recommendations, but could only enact a joint resolution disapproving the Commission's entire list within forty-five days. If Congress failed to disapprove the entire list, the Secretary had to implement the recommended closures and realignments within six years. Benjamin L. Ginsberg et al., Waging Peace: A Practical Guide to Base Closures, 23 PUB. CONT. L.J. 169,172 (1994) (citation omitted).
179. Morriss et al., supra note 26, at 597.
180. Id.
181. See Morrow, supra note 56, at 18 ("[Judge Plager] suggested a more effective measure would be to have Congress pass a law prohibiting submission of final regulations during the interregnum.").
182. See Memorandum from Joshua B. Bolten, White House Chief of Staff, to Heads of Executive Departments and Agencies (May 9, 2008), available at http://www.ombwatch.org/regs/PDFs/BoltenMemo050908.pdf.
183. Id.
184. Id.
185. Monthly figures generated using OlRA's online "review counts" database. See RegInfo.gov, Review Counts, http://www.reginfo.gov/public/do/ eoCountsSearchInit?action=init (last visited Aug. 15, 2008).
186. Id.
187. Id.
188. Id.
189. Id.
190. Id.
191. Morriss et al., supra note 26, at 597.
192. Id.
193. Morriss et al., supra note 26, at 597.
194. See generally CLYDE WAYNE CREWS, JR., COMPETITIVE ENTERPRISE INSTITUTE, PROMISE AND PERIL: IMPLEMENTING A REGULATORY BUDGET (1996), http://cei.org/ pdfl549.pdf;
195. Robert W. Hahn, Achieving Real Regulatory Reform, 1997 U. CHI. LEGAL F. 143, 152-53 (advocating use of a regulatory budget).
196. 125 CONG. REC. 3817 (Mar. 5, 1979) (quoting Sen. Lloyd Bentsen), as quoted by Julius W. Allen, CONG. RESEARCH SERV., THE PROPOSAL FOR A FEDERAL REGULATORY BUDGET-AN OVERVIEW 8-9 (1979); CREWS, supra note 177, at 3.
197. Exec. Order No. 12,866, 58 Fed. Reg. 51,735, 51,742 (Oct. 4, 1993).
198. See Copeland, supra note 74, at 1273-74, 1277 (outlining OIRA's formal review process and elaborating on the specific function of the desk officer).
199. Curtis W. Copeland explains the staff resources available to OIRA: When OIRA was created in fiscal year 1981, the office had a "full-time equivalent" (FTE) ceiling of ninety staff members. By 1997, OIRA's FTE allocation had declined to forty-seven-a nearly fifty percent reduction. Although Executive Order 12,866 (issued in late 1993) permitted OIRA to focus its resources on "significant" rules, this decline in OIRA staffing also occurred during a period in which regulatory agencies' staffing and budgetary levels were increasing and OIRA was given a number of new statutory responsibilities. Starting in 2001, OIRA's staffing authorization began to increase somewhat, and by 2003 it stood at fifty-five FTEs. Between 2001 and 2003, OIRA hired five new staff members in such fields as epidemiology, risk assessment, engineering, and health economics. OIRA representatives indicated that these new hires reflected the increasing importance of science-based regulation in federal agencies, and would enable OIRA to ask penetrating technical questions about agency proposals. Id. at 1293 (citation omitted).
200. In fact, some have argued that OIRA's resources at present are inadequate and should be increased. See Robert Hahn & Robert E. Litan, Why Congress Should Increase Funding for OMB Review of Regulations, BROOKINGS INSTITUTION, Oct. 2003, http://www.brookings.edu/opinions/2003/10-ombregulation-litan.aspx (observing that OIRA's lean staff of fifty-four professionals reviews over three-hundred regulations with "an annual economic impact that typically exceeds $100 million").
201. According to Copeland, "OIRA does not have a specific line item in the budget, so its funding is part of OMB's appropriation. Similarly, OIRA's staffing levels are allocated from OMB's totals." Copeland, supra note 74, at 1307. This means that either Congress could increase OIRA's budget by creating a line item or the President could increase the budget by prioritizing the distribution of OMB's budget differently.
202. See id. at 1304 ("Although some argued early in OIRA's history that the office's regulatory review role was unconstitutional, few observers continue to hold that view.").
203. See, e.g., id. at 1306-07 (explaining that the 106th Congress considered legislation that would have required the president to establish a review process for agency regulatory actions).