Agency rulemaking and political transitions

Northwestern University Law Review

Volumn 105, Issue 2, 2011, Pages 471-534

  O'Connell, Anne Joseph ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 81355123187     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (392)

1. Memorandum from Rahm Emanuel, Assistant to the President and Chief of Staff, the White House, to Heads of Executive Departments and Agencies (Jan. 20, 2009) [hereinafter Emanuel Memo], in 74 Fed. Reg. 4435 (Jan. 26, 2009). The memorandum provided exceptions approved by the Director of the Office of Management and Budget "for emergency situations or other urgent circumstances relating to health, safety, environmental, financial, or other national security matters," or other urgent matters.
2. Id. The action was one of the first of the new Administration. President Obama had not yet signed a single executive order or held a press conference.
3. See Jeff Zeleny, A Busy Night on the Town, Then a Busier Day at the Office, N.Y. TIMES, Jan. 22, 2009, at A20.
4. Emanuel Memo, supra note 1, at 4435.
5. Oil Shale Management-General, 73 Fed. Reg. 69,414, 69,414 (Nov. 18 2008) (to be codified at 43 C.F.R. pts. 3900, 3910, 3920, 3930)
6. David A. Fahrenthold, Bush Administration Pushes Their Final Environment and Energy Policies, WASH. POST (Dec. 19, 2008), http://www.washingtonpost.com/wpdyn/content/article/2008/12/19/AR2008121 902898.html.
7. Expansion of RCRA Comparable Fuel Exclusion, 73 Fed. Reg. 77,953, 77,953 (Dec. 19, 2008) (to be codified at 40 C.F.R. pt. 261)
8. R. Jeffrey Smith, EPA Issues Exemptions for Hazardous Waste, Factory Farms, WASH. POST, Dec. 13, 2008, at A4.
9. Memorandum from Joshua B. Bolten, Chief of Staff, the White House, to Heads of Executive Departments and Agencies(May9,2008)[hereinafter Bolten Memo], available at http://graphics8.nytimes.com/packages/pdf/washington/COS%20Memo%205.9.08 .pdf. Although the memorandum did not establish any procedures to demonstrate extraordinary circumstances, agencies still needed to get final regulations approved by the Office of Information and Regulatory Affairs in the Office of Management and Budget under Executive Orders 12,866, 3 C.F.R. 638 (1994), reprinted in 5 U.S.C. § 601 (2006), and 13,422, 3 C.F.R. 191 (2008), repealed by Exec. Order No. 13,497, 3 C.F.R. 218 (2010). To the extent that agencies complied with the memorandum, there were fewer classic midnight regulations (i.e., rules issued after the election); compliance also ensured that regulations had taken effect before the new Administration took over, making it harder to reverse those regulatory (or deregulatory) actions.
10. See Charlie Savage & Robert Pear, Administration Moves to Avert Late Rules Rush, N.Y. TIMES, May 31, 2008, at A1; infra notes 117-18 and accompanying text.
11. President George W. Bush kept the first. Matthew L. Wald, Administration Keeps 2 Rules on Efficiency of Appliances, N.Y. TIMES, Apr. 13, 2001, at A14. Congress killed the second under the authority provided by the Congressional Review Act. Ergonomics Rule Disapproval, Pub. L. No. 107-5, 115 Stat. 7 (2001)
12. see Congressional Review Act, 5 U.S.C. §§ 801-808 (2006).
13. See infra Figure 8.
14. Memorandum from Andrew H. Card, Jr., Assistant to the President and Chief of Staff, the White House, to Heads and Acting Heads of Executive Departments and Agencies (Jan. 202001) [hereinafter Card Memo], in 66 Fed. Reg. 7702 (Jan. 24, 2001). The May 2008 Bolten Memo mostly took the last option off the table for the incoming Obama Administration because completing regulations by mid November ensured that they would be in effect before Obama's inauguration
15. See Bolten Memo, supra note 5. Presidents Reagan and George W. Bush also suspended the effective dates of regulations from executive agencies (but not independent regulatory commissions) that had been completed at the end of Presidents Carter's and Clinton's Administrations, respectively, but had not gone into effect. CURTIS W. COPELAND, CONG. RESEARCH SERV., RL 34747, MIDNIGHT RULEMAKING: CONSIDERATIONS FOR CONGRESS AND A NEW ADMINISTRATION 7-9 (2008). By contrast, the Emanuel Memo requested that all agencies "consider" similar suspensions of regulations promulgated at the end of President George W. Bush's Administration. Emanuel Memo, supra note 1.
16. See infra Figure 10.
17. See infra Figures 6, 8, 10.
18. David M. Herszenhorn, Legislative Plan Direct from G.O.P. Mainstream, N.Y. TIMES, Sept. 24, 2010, at A17 ("The Republicans also promised to 'rein in the red tape factory in Washington' by making it harder for federal agencies to impose new regulations.")
19. Robert Pear, Short of Repeal, G.O.P. Will Chip Away at Health Care, N.Y. TIMES, Sept. 21, 2010, at A1 ("Republicans say [in the 2010 election season that if elected] they will try to withhold money that federal officials need to administer and enforce the [new health care] law. They know that even if they managed to pass a wholesale repeal, Mr. Obama would veto it."). Some agencies waited until after the election to not have regulations be made an election issue.
20. Gabriel Nelson, EPA Delays Release of Final Ozone Standards, N.Y. TIMES (Aug. 23, 2010), http://www.nytimes.com/gwire/2010/08/23/23greenwire-epa-delays-release-o f-final-ozonestandards-75285.html ("The current political climate would make it 'convenient' for EPA to release the standards after November's midterm election, said Howard Feldman, director of regulatory and scientific affairs at the American Petroleum Institute. Frank O'Donnell, president of advocacy group Clean Air Watch, agreed. The decision to delay the final rule could reflect intense political pressure on the agency, he wrote in an e-mail").
21. 533 U.S. 218, 226-27 (2001)
22. Interim Résumé of Congressional Activity: First Session of the One Hundred Eleventh Congress, 156 CONG. REC. D3 (corrected daily ed. Jan. 5, 2010). In 2008, Congress passed 278 public laws. Interim Résumé of Congressional Activity: Second Session of the One Hundred Tenth Congress, 154 CONG. REC. D1336 (daily ed. Jan. 2, 2009).
23. See GAO Federal Rules Database Search, U.S. GOV'T ACCOUNTABILITY OFFICE, http://www.gao.gov/legal/congressact/fedrule.html (search Agency: All, Rule Type: All, Priority Type: All, Date Published in the Federal Register: January 2009 to December 2009) (last visited Aug. 20, 2011). In 2008, agencies published 3117 rules
24. See GAO Federal Rules Database Search, U.S. GOV'T ACCOUNTABILITY OFFICE, http://www.gao.gov/legal/congressact/fedrule.html (search Agency: All, Rule Type: All, Priority Type: All, Date Published in the Federal Register: January 2008 to December 2008) (last visited Aug. 20, 2011).
25. See GAO Federal Rules Database Search, U.S. GOV'T ACCOUNTABILITY OFFICE, http://www.gao.gov/legal/congressact/fedrule.html (search Agency: All, Rule Type: Major, Priority Type: All, Date Published in the Federal Register: January 2009 to December 2009) (last visited Aug. 20, 2011). In 2008, agencies published 95 major rules.
26. GAO Federal Rules Database Search, U.S. GOV'T ACCOUNTABILITY OFFICE, http://www.gao.gov/legal/congressact/fedrule.html (search Agency: All, Rule Type: Major, Priority Type: All, Date Published in the Federal Register: January 2008 to December 2008) (last visited Aug. 20, 2011). The law defines "significant" or "major" rules as those that have at least an annual $100 million, or otherwise "material[ly]" adverse, effect on the economy. Exec. Order No. 12,866, supra note 5, § 3(f)
27. see 5 U.S.C. § 804(2) (2006) ("The term 'major rule' means any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in-(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets."). The empirical work in this Article uses a slightly wider definition of significance to include other, noneconomically significant regulations.
28. I use the terms "rule" and "regulation" interchangeably. If no other information is provided, the terms refer to a regulation or rule produced by the notice-and-comment procedures prescribed by the Administrative Procedure Act, 5 U.S.C. §§ 551-559 (2006).
29. O'CONNELL, supra note, at 900-02 & n.26. Independent regulatory commissions, such as the Federal Communications Commission, do not need to seek OIRA review before publishing an NPRM or final rule. Exec. Order No. 12,866, supra note 5, § 3(b) ("'Agency,' unless otherwise indicated, means any authority of the United States that is an 'agency' under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(10).").
30. See Congressional Review Act, 5 U.S.C. § 801 (2006).
31. O'CONNELL, supra note, at 903.
32. U.S.C. § 553(b)(3)(B) (2006).
33. Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (2006).
34. Family and Medical Leave Act of 1993, 73 Fed. Reg. 67,934, 67,934-35 (Nov. 17, 2008).
35. See Jacob E. Gersen & Anne Joseph O'Connell, Hiding in Plain Sight? Timing and Transparency in the Administrative State, 76 U. CHI. L. REV. 1157, 1174, 1188 (2009). Courts are more likely to review withdrawn rules if "the relevant statutory scheme expressly contemplates the withdrawal of a proposed regulatory action" or "the applicable statute imposes mandatory obligations on the agency to act."
36. Id. at 1188-89.
37. 16 U.S.C. § 1533(b)(6) (2006).
38. Gersen & O'Connell, supra note 23, at 1188-89.
39. Id. at 1196 (providing several examples where agencies "withdr[ew] uncompleted rulemakings that were started under the previous administration")
40. O'CONNELL, supra note, at 959-63 (documenting spikes in withdrawals after political transitions). Courts sometimes note the timing of a withdrawal but do not consider the political transition in assessing the withdrawal's legality. See, e.g., Natural Res. Def. Council, Inc. v. EPA, 824 F.2d 1146, 1149 (D.C. Cir. 1987) (regulation proposed in 1977, withdrawn in 1985)
41. Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 615-16 (D.C. Cir. 1987) (standard proposed in 1976, not pursued in 1977), vacated, 817 F.2d 890, 890 (D.C. Cir. 1987).
42. Requirements for DOL Agencies' Assessment of Occupational Health Risks, 74 Fed. Reg. 44,795, 44,795 (Aug. 31, 2009) (to be codified at 29 C.F.R. pt. 2). The Obama Administration also withdrew proposed quarantine regulations that had been announced in 2005 "amid fears of avian flu." Alison Young, White House Kills Proposal for Quarantines, USA TODAY, Apr. 2, 2010, at 5A.
43. E.g., Jack M. Beermann, Presidential Power in Transitions, 83 B.U. L. REV. 947, 948-49 (2003)
44. Jack M. Beermann & William P. Marshall, The Constitutional Law of Presidential Transitions, 84 N.C. L. REV. 1253, 1262-67 (2006)
45. Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives, 78 N.Y.U. L. REV. 557, 559-67 (2003)
46. Andrew P. Morriss et al., Between a Hard Rock and a Hard Place: Politics, Midnight Regulations and Mining, 55 ADMIN. L. REV. 551, 553 (2003)
47. Jim Rossi, Bargaining in the Shadow of Administrative Procedure: The Public Interest in Rulemaking Settlement, 51 DUKE L.J. 1015, 1039-43 (2001)
48. 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, ADMIN. L. REV. 1479, 1479-84 (2002)
49. B.J. Sanford, Note, Midnight Regulations, Judicial Review, and the Formal Limits of Presidential Rulemaking, 78 N.Y.U. L. REV. 782, 782-84 (2003).
50. Ronald A. Taylor et al., Here Come Ronald Reagan's 'Midnight' Regs, U.S. NEWS & WORLD REP., Nov. 28, 1988, at 11.
51. David Hoffman & Ann Devroy, Bush Pledges to Work with Congress: President-Elect Prepares to Put Own Team in Place Swiftly, WASH. POST, Nov. 8, 1988, at A1
52. see Gerald F. Seib, The Next President: No Ideologue, Bush Is Likely to Be Pragmatic, Work with Congress, WALL ST. J., Nov. 10, 1988, at A1 (quoting President H.W. Bush as saying he would "for the most part bring in a brand-new team of people from around the country").
53. See Robert Maranto, BEYOND A GOVERNMENT OF STRANGERS: HOW CAREER EXECUTIVES AND POLITICAL APPOINTEES CAN TURN CONFLICT TO COOPERATION 58 (2005)
54. see also Steven V. Roberts, Bush Personnel Team Aims for Stiff Scrutiny, N.Y. TIMES, Nov, 12, 1988, at A9 (describing the "wave of jitters" from the post-election announcement "that all Presidential appointees would be asked for their resignations").
55. 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, 1444-45 (2005).
56. Anne Joseph O'Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. CAL. L. REV. 913, 955-63 (2009).
57. See infra paragraph accompanying notes 133-34 (analyzing duration of recent rulemakings).
58. See Richard L. Berke, G.O.P. Wins Control of Senate and Makes Big Gains in House; Pataki Denies Cuomo 4th Term, N.Y. TIMES, Nov. 9, 1994, at A1
59. Adam Nagourney, 12-Year Run Over, Balance May Rest on Virginia Race, N.Y. TIMES, Nov. 8, 2006, at A1
60. see also Jeff Zeleny, As Guard Changes in Congress, Lobbyists Scramble to Get in Step, N.Y. TIMES, Nov. 15, 2006, at A1 ("Republicans do not cede control of Congress for nearly two months, but money, power and influence are already beginning to change hands. The political economy, at least here in the capital, is humming for Democrats.").
61. See CONTRACT WITH AMERICA 125 (Ed Gillespie & Bob Schellhas eds., 1994).
62. See Robert Pear, Drug Industry Is on Defensive as Power Shifts, N.Y. TIMES, Nov. 24, 2006, at A1.
63. In May 2001, Senator Jeffords of Vermont declared that he would caucus with the Democrats, instead of with the Republicans, leaving fifty Democrats, forty-nine Republicans, and Jeffords. This decision by Jeffords allowed the Democrats to control committee leadership (as the Vice President had sided with the Republicans previously to break the tie in the Republicans' favor)
64. See John Lancaster & Helen Dewar, Jeffords Tips Senate Power, WASH. POST, May 25, 2001, at A1. In 2002, the Republicans won a majority of seats in the Senate.
65. See, e.g., Carl Tobias, Federal Judicial Selection in a Time of Divided Government, 47 EMORY L.J. 527-531 (1998) (explaining that judicial selection "has been politicized since the country's founding" but that "significant numbers of vacancies, which remained unfilled for protracted periods, only became a serious problem after the mid-twentieth century").
66. In recent decades, political parties have become more polarized, making Democratic control of Congress now quite different from Democratic control during President Carter's Administration.
67. See Nolan Mccarty, Keith T. POOLE & HOWARD ROSENTHAL, POLARIZED AMERICA: THE DANCE OF IDEOLOGY AND UNEQUAL RICHES 24 (2006)
68. SEAN M. THERIAULT, PARTY POLARIZATION IN CONGRESS 3-4 (2008).
69. Linda Greenhouse, In Steps Big and Small, Supreme Court Moved Right, N.Y. TIMES, July 1, 2007, at A1.
70. 129 S. Ct. 1800, 1810 (2009) (holding a change in agency policy to the same standard of review as the initial policy).
71. 545 U.S. 967, 980-86 (2005) (applying traditional Chevron deference to an agency interpretation of an ambiguous statute even if a court had previously settled on another interpretation).
72. 533 U.S. 218, 226-31 (2001) (limiting Chevron deference to interpretations where Congress has delegated to the agency the authority to act with the force of law and where the agency has acted with that authority)
73. 467 U.S. 837, 842-43 (1984) (establishing the two-part framework for assessing agency interpretations of statutes: (1) "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."; (2) "[I]f 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.").
74. 463 U.S. 29, 43 (1983) (establishing "hard look" review of agency actions under the APA's "arbitrary and capricious" clause).
75. 435 U.S. 519, 543-49 (1978) (barring courts from imposing additional procedural requirements on agencies unless compelled by statute or by the Constitution).
76. See, e.g., 29 U.S.C. § 2654 (2006); Nw. Envtl. Advocates v. EPA, No. C 03-05760 SI, 2006 WL 2669042, at 12 (N.D. Cal. Sept. 18, 2006)
77. see generally Alden F. Abbott, The Case Against Federal Statutory and Judicial Deadlines: A Cost-Benefit Appraisal, 39 ADMIN. L. REV. 171, 171-73 (1987) (arguing that "reliance on deadlines may be counterproductive")
78. Alden F. Abbott, Case Studies on the Costs of Federal Statutory and Judicial Deadlines, 39 ADMIN. L. REV. 467, 467-86 (1987) (using eleven case studies "more fully exploring" his previous argument)
79. Jacob E. Gersen & Anne Joseph O'Connell, Deadlines in Administrative Law, 156 U. PA. L. REV. 923, 939-43 (2008) (empirically examining the use of deadlines from 1983 to 2003)
80. Gregory L. Ogden, Reducing Administrative Delay: Timeliness Standards, Judicial Review of Agency Procedures, Procedural Reform, and Legislative Oversight, 4 U. DAYTON. L. REV. 71, 73-77 (1979) (contending that deadlines are often necessary to get needed agency action)
81. Richard J. Pierce, Jr., Judicial Review of Agency Actions in a Period of Diminishing Agency Resources, 49 ADMIN. L. REV. 61, 77-84 (1997) (noting that most agencies fail to meet statutory deadlines and analyzing actual and potential judicial responses).
82. See, e.g., 5 U.S.C. § 553(b)-(d) (2006); Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1031 (D.C. Cir. 1978); Exec. Order No. 12,866, supra note 5.
83. See, e.g., Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135; Exec. Order No. 13,228, 3 C.F.R. 796 (2002).
84. See Matthew C. Stephenson, Statutory Interpretation by Agencies, in RESEARCH HANDBOOK ON PUBLIC CHOICE AND PUBLIC LAW 285, 297 (Daniel A. Farber & Anne Joseph O'Connell eds., 2010)
85. see also David J. Barron, From Takeover to Merger: Reforming Administrative Law in an Age of Agency Politicization, 76 GEO. WASH. L. REV. 1095, 1095-97 (2008) (noting extensive presidential involvement in agency decisions but also claiming that agencies themselves are politicized through staffing decisions)
86. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2272-319 (2001) (demonstrating the considerable control of the White House over agency decisions and providing a legal and normative defense for that control). There is considerable debate in the political science literature as to whether Congress or the President is the dominant overseer of federal agencies
87. See O'CONNELL, supra note, at 910-11 nn.68, 70 (gathering citations).
88. O'CONNELL, supra note, at 900 & n.26, 918
89. Stephenson, supra note 51, at 297-300.
90. See Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 17871801, 115 YALE L.J. 1256-1311 (2006). President Jackson established rotation in offices, arguing that the spoils system was prodemocratic compared to the earlier traditions that treated those positions as property rights.
91. Jerry L. Mashaw, Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861, 117 YALE L.J. 1568, 1577-78, 1613-14 (2008).
92. See O'Connell, supra note 33, at 927-28.
93. See O'CONNELL, supra note, at 919-20.
94. See Stephenson, supra note 51, at 285.
95. O'CONNELL, supra note, at 920
96. Stephenson, supra note 51, at 285-97.
97. Anne M. Joseph, Called to Testify: Congressional Oversight of Presidential Appointees and the Administrative State (Feb. 7, 2003) (unpublished manuscript) (on file with author).
98. Curtis w. Copeland, CONG. RESEARCH SERV., RL 34354, CONGRESSIONAL INFLUENCES ON RULEMAKING THROUGH APPROPRIATIONS PROVISIONS (2008)
99. see also Neal E. Devins, Regulation of Government Agencies Through Limitation Riders, 1987 DUKE L.J. 456-456 (detailing use of appropriations riders and arguing that they are "not the proper vehicle for substantive policymaking").
100. See JOEL D. ABERBACH, KEEPING A WATCHFUL EYE 130-44 (1990).
101. See O'Connell, supra note 33, at 919 & n.23.
102. See O'CONNELL, supra note, at 920-21.
103. See id. at 921.
104. Stephenson, supra note 51, at 306.
105. See, e.g., Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 842 (2006)
106. see generally Tonja Jacobi, The Judiciary, in RESEARCH HANDBOOK ON PUBLIC CHOICE AND PUBLIC LAW, supra note 51, at 234, 239-45 (examining strategic behavior in judicial decisionmaking)
107. Stephenson, supra note 51, at 306-15 (summarizing how law and politics shape judicial review of agency statutory interpretations).
108. See, e.g., Exec. Order No. 12,866, supra note 5.
109. Some research on rulemaking across agencies and over time, of course, does exist. E.g., Gersen & O'Connell, supra note 48, at 979-90 (examining rulemaking deadlines)
110. Gersen & O'Connell, supra note 23, at 1210-13 (examining timing of rulemaking decisions)
111. O'CONNELL, supra note, at 922-63, 983-86 (analyzing initiations, completions, and withdrawals of rulemaking, with a focus on political transitions)
112. Jason Webb Yackee & Susan Webb Yackee, Administrative Procedures and Bureaucratic Performance: Is Federal Rule-Making "Ossified"?, 20 J. PUB. ADMIN. RES. & THEORY 261 (2009) [hereinafter Yackee & Yackee, Ossified] (analyzing constraints on the duration of the rulemaking process)
113. Jason Webb Yackee & Susan Webb Yackee, Divided Government and U.S. Federal Rulemaking, 3 REGULATION & GOVERNANCE 128 (2009) [hereinafter Yackee & Yackee, Divided] (analyzing the effect of divided government on the rulemaking process).
114. E.g., Cornelius M. Kerwin, RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY 7-21 (3d ed. 2003) (noting macro trends in rulemaking actions)
115. Jerry Brito & Veronique de Rugy, Midnight Regulations and Regulatory Review, 61 ADMIN. L. REV. 163, 166-69, 183-87 (2009) (analyzing variation in Federal Register pages during political transitions)
116. William G. Howell & Kenneth R. Mayer, The Last One Hundred Days, 35 PRESIDENTIAL STUD. Q. 533, 539-43 (2005) (analyzing changes in Federal Register pages, among other items, over time, with attention to presidential transitions). There has also been some work by journalists and think tanks. E.g., Jay Cochran, III, The Cinderella Constraint: Why Regulations Increase Significantly During Post-election Quarters 2, 10-14 (Mar. 8, 2001) (unpublished manuscript), http://mercatus.org/publication/cinderella-constraint-why-regulations-in crease-significantly-during-post-election-quarte?id=17546 (examining variation in Federal Register pages during political transitions)
117. CLYDE WAYNE CREWS, JR., TEN THOUSAND COMMANDMENTS, AN ANNUAL SNAPSHOT OF THE FEDERAL REGULATORY STATE 13-29 (2010) (summarizing counts of Federal Register pages and rulemaking entries in the Unified Agenda of Federal Regulatory and Deregulatory Actions)
118. James L. Gattuso, Reining in the Regulators: How Does President Bush Measure Up?, BACKGROUNDER (Heritage Found., Washington, D.C.), Sept. 28, 2004, at 5-10 (summarizing counts of Federal Register pages, Code of Federal Regulations pages, and major rules in the Government Accountability Office's database)
119. Patrick A. McLaughlin, Empirical Tests for Midnight Regulations and Their Effect on OIRA Review Time 7-23 (Mercatus Ctr., Working Paper No. 08-40,2008),
120. http://mercatus.org/sites/default/files/publication/WPPDF_Empirical_Test s_for_Midnight_Regulations. pdf (analyzing relationship between midnight regulations and OIRA review time).
121. U.S. GOV'T ACCOUNTABILITY OFFICE, FEDERAL RULEMAKING: IMPROVEMENTS NEEDED TO MONITORING AND EVALUATION OF RULES DEVELOPMENT AS WELL AS TO THE TRANSPARENCY OF OMB REGULATORY REVIEWS (2009) (examining timelines for sixteen rulemakings)
122. Scott R. Furlong, The 1992 Regulatory Moratorium: Did It Make a Difference?, 55 PUB. ADMIN. REV. 254, 257-60 (1995) (describing rulemaking trends in President George H.W. Bush's Administration)
123. Gregory H. Gaertner et al., Federal Agencies in the Context of Transition: A Contrast Between Democratic and Organizational Theories, 43 PUB. ADMIN. REV. 421 (1983) (examining effects of the 1980-1981 presidential transition on two federal agencies)
124. Stephen M. Johnson, Ossification's Demise? An Empirical Examination of EPA Rulemaking from 2001-2005, 38 ENVTL. L. 767 (2008) (examining counts and duration of rulemakings at the EPA during the first term of President George W. Bush)
125. Cornelius M. Kerwin & Scott R. Furlong, Time and Rulemaking: An Empirical Test of Theory, 2 J. PUB. ADMIN. RES. & THEORY 113, 122-30 (1992) (investigating constraints on the duration of the rulemaking process at the EPA)
126. Loring & Roth, supra note 32, at 1450-59 (examining midnight rulemaking in three agencies under Presidents George H.W. Bush and Clinton)
127. Stuart Shapiro, Presidents and Process: A Comparison of the Regulatory Process Under the Clinton and Bush (43) Administrations, 23 J.L. & POL. 393, 399-417 (2007) [hereinafter Shapiro, Presidents] (comparing rulemaking in November and December 1999 with rulemaking in November and December 2003)
128. Stuart Shapiro, Two Months in the Life of the Regulatory State, 30 ADMIN. & REG. L. NEWS 12 (2005) [hereinafter Shapiro, Two Months] (describing rulemaking in November and December 2003)
129. Jason Webb Yackee & Susan Webb Yackee, A Bias Towards Business? Assessing Interest Group Influence on the U.S. Bureaucracy, 68 J. POL. 128, 131-37 (2006) [hereinafter Yackee & Yackee, Bias] (examining the effect of interest group comments on forty rulemakings)
130. Susan Webb Yackee, Assessing Inter-institutional Attention to and Influence on Government Regulations, 36 BRIT. J. POL. SCI. 723, 731-41 (2006) (analyzing the effect of comments and political institutions on forty rulemakings)
131. Stuart Shapiro, Explaining Ossification: An Examination of the Time to Finish Rulemakings (Aug. 11, 2009) [hereinafter Shapiro, Ossification], available at http://papers.ssrn.com/abstracts=1447337 (using ordinary least squares regression models to examine the duration of 435 rulemakings)
132. Jason Webb Yackee & Susan Webb Yackee, Testing the Ossification Thesis: An Empirical Examination of Federal Regulatory Volume and Speed, 1950-1990 (Nov. 30, 2010) [hereinafter Yackee & Yackee, Testing], available at http://papers.ssrn.com/abstracts=1699878.
133. See Brito & de Rugy, supra note 68
134. Gaertner et al., supra note 69
135. Gersen & O'Connell, supra note 48
136. Gersen & O'Connell, supra note 23
137. Howell & Mayer, supra note 68
138. Loring & Roth, supra note 32
139. O'CONNELL, supra note
140. Shapiro, Presidents, supra note 69
141. Yackee & Yackee, Divided, supra note 67
142. Cochran, supra note 68
143. McLaughlin, supra note 68.
144. But see Gersen & O'Connell, supra note 48
145. Gersen & O'Connell, supra note 23
146. Loring & Roth, supra note 32
147. O'CONNELL, supra note
148. Yackee & Yackee, Testing, supra note 69.
149. See, e.g., Brito & de Rugy, supra note 68
150. Howell & Mayer, supra note 68
151. Cochran, supra note 68.
152. The Yackees and I work with databases independently created from the Unified Agenda of Federal Regulatory and Deregulatory Actions.
153. See O'CONNELL, supra note, at 924 n.103 (summarizing studies using the Unified Agenda).
154. Yackee & Yackee, Ossified, supra note 67.
155. See, e.g., STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE 49 (1993)
156. JERRY L. MASHAW & DAVID L. HARFST, THE STRUGGLE FOR AUTO SAFETY 225-54 (1990)
157. Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 TEX. L. REV. 525-530 (1997) (arguing against Professor Seidenfeld's suggestion that "judicial contribution to the ossification problem can be successfully brought under control")
158. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385 (1992) (examining existing evidence and causes of ossification as well as avoidance devices). Yackee and Yackee are not the first to challenge the ossification thesis
159. See, e.g., William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 NW. U. L. REV. 393 (2000)
160. Peter L. Strauss, The Rulemaking Continuum, 41 DUKE L.J. 1463-1466 (1992) (exploring issues of rulemaking by considering the importance of the "traditions of holding government accountable to the law it creates for itself").
161. Yackee & Yackee, Ossified, supra note 67, at 261.
162. Id.
163. Yackee and Yackee have recently completed another study on ossification-focusing on the Department of the Interior-that spans a more relevant period for assessing ossification, from 1950 to 1990.
164. Yackee & Yackee, Testing, supra note 69. This second study yields similar results, finding "mixed and relatively weak evidence of ossification."
165. Id. at 1. Specifically, they find that the Department of the Interior continues to "promulgate large volumes of regulations" but that those regulations, on average, "take somewhat longer to complete in the ossified era than before."
166. Id.
167. Yackee & Yackee, Divided, supra note 67. This work was conducted independently and published shortly after my research on divided government and rulemaking in O'CONNELL, supra note
168. Yackee & Yackee, Divided, supra note 67, at 128.
169. See Brito & de Rugy, supra note 68
170. Howell & Mayer, supra note 68
171. Cochran, supra note 68.
172. Under the Act, "[t]he term 'major rule' means any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in-(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets." 5 U.S.C. § 804(2) (2006).
173. STEVEN P. CROLEY, REGULATION AND PUBLIC INTERESTS: THE POSSIBILITY OF GOOD REGULATORY GOVERNMENT 103 (2008).
174. See 5 U.S.C. § 552(a)(1) (2006) ("Each agency shall separately state and currently publish in the Federal Register for the guidance of the public... (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and (E) each amendment, revision, or repeal of the foregoing.").
175. See Loring & Roth, supra note 32, at 1450-51 (restricting analysis to three agencies over two presidential transitions)
176. Shapiro, Presidents, supra note 69, at 400 (limiting analysis to two two-month periods, one in 1999 and one in 2003)
177. Yackee & Yackee, Testing, supra note 69, at 31-33 (looking at forty years of entries for the Department of the Interior).
178. I am making this compiled database available to interested scholars. Please email aoconnell@law.berkeley.edu. See also Data Sets for Northwestern University Law Review 105:2, NW. U. L. REV. (Oct. 1, 2011), http://www.law.northwestern.edu/lawreview/issues/105.2.data.html. Recent editions of the Unified Agenda are available at http://www.reginfo.gov/public/do/eAgendaMain.
179. There are some complexities involved in using the Unified Agenda reports. Most important, an individual rulemaking may appear in successive versions of the Agenda. Some scholars do not filter out these duplicative entries, leading to overcounting of rulemaking activity.
180. See O'CONNELL, supra note, at 925 n.104. I used the most recent Agenda report for a particular rulemaking. This means that if an earlier entry for a rulemaking contained certain information that a later entry did not, the earlier information would not be included in the database. To that extent, the database undercounts particular regulatory actions. I used the latest entry on the assumption that it was the most reliable.
181. See supra note 73 and accompanying text.
182. The cabinet departments include the following: Department of Agriculture (not including the Federal Crop Insurance Corporation); Department of Commerce; Department of Defense; Department of Education; Department of Energy (not including the Federal Energy Regulatory Commission); Department of Health and Human Services (not including the Social Security Administration); Department of Homeland Security (not including the Federal Emergency Management Agency); Department of Housing and Urban Development (not including the Office of Federal Housing Enterprise Oversight); Department of the Interior; Department of Justice; Department of Labor (not including the Pension Benefit Guaranty Corporation); Department of State; Department of Transportation (not including the Surface Transportation Board and Saint Lawrence Seaway Development Corporation); Department of the Treasury (not including Internal Revenue Service); and the Department of Veterans Affairs (and Veterans Administration before it became a department). The executive agencies include the following: Environmental Protection Agency; Federal Emergency Management Agency; General Services Administration; Internal Revenue Service (before 1999); National Aeronautics and Space Administration; National Archives and Records Administration; Office of Management and Budget; Office of Personnel Management; Small Business Administration; Social Security Administration (before 1995); and Agency for International Development. The independent agencies include the following: Commodity Futures Trading Commission; Consumer Product Safety Commission; Equal Employment Opportunity Commission; Farm Credit Administration; Federal Communications Commission; Federal Crop Insurance Corporation; Federal Deposit Insurance Corporation; Federal Energy Regulatory Commission; Federal Home Loan Bank Board; Federal Housing Finance Board; Federal Maritime Commission; Federal Reserve Board; Federal Trade Commission; Internal Revenue Service (after 1998); Interstate Commerce Commission; National Credit Union Administration; Nuclear Regulatory Commission; Office of Federal Housing Enterprise Oversight; Pension Benefit Guaranty Corporation; Saint Lawrence Seaway Development Corporation; Securities and Exchange Commission; Social Security Administration (after 1994); and the Surface Transportation Board. The IRS Restructuring and Reform Act of 1998 established a five-year term of office for the IRS Commissioner, which applied to the current leader at the time of enactment. The SSA became independent under the Social Security Independence and Program Improvements Act of
183. Agencies can also list actions they intend to undertake with predicted dates (which are marked with "00" in the day field). I excluded those intended actions. Because I used the latest entry on a rulemaking, many of these intended dates became actual dates and were therefore included.
184. See O'CONNELL, supra note, at 937-52, 959-63.
185. See id. at 967-71
186. supra Part I.B-C.
187. An action is counted as an "initiated regulatory action" if the rulemaking action listed in the timetable field was an NPRM. An action is counted as a "completed regulatory action" if the rulemaking action listed in the timetable field was a final rule or final action. An action is counted as a "withdrawal" if the rulemaking action listed in the timetable field was stated as a withdrawal or as deleted at agency request. Withdrawals are almost entirely of uncompleted regulatory actions, but some are of direct and interim final rules. Most critically, some regulatory actions that should have been listed as "final actions," particularly before 2003, are listed in the timetable field as "other." Such actions are not counted in the analysis presented here. More investigation needs to be done to see how many actions are being missed because of the coding scheme employed here. If an RIN had multiple dates for the same type of action, only one date was selected. For initiations, the earliest date was used; for final actions and withdrawals, the latest date was used
188. See Gersen & O'Connell, supra note 48, at 988-89 (measuring duration of the rulemaking process from the issuance of the NPRM)
189. Gersen & O'Connell, supra note 23, at 1178 (looking at the timing of NPRMs by day of week and whether Congress was in recess)
190. O'CONNELL, supra note, at 937-52 (analyzing NPRMs as the start of the rulemaking process)
191. Shapiro, Presidents, supra note 69, at 412-17 (calculating duration of rulemaking process from the NPRM)
192. Yackee & Yackee, Ossified, supra note 67, at 271 (analyzing "months elapsed between publication of an NPRM and its associated final rule")
193. Yackee & Yackee, Divided, supra note 67, at 135 (using counts of NPRMs as a measure of the initiation of rulemaking).
194. But see U.S. GEN. ACCOUNTING OFFICE, GAO-01-821, AVIATION RULEMAKING: FURTHER REFORM IS NEEDED TO ADDRESS LONG-STANDING PROBLEMS 8-9 (2001) (examining delay between statutory delegation and issuance of NPRMs in one area of regulation)
195. U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 69, at 18 (examining true start of rulemaking process and measuring duration from that until publication of the proposed rule)
196. Kerwin & Furlong, supra note 69, at 120-22 (using data from the EPA to examine time before the NPRM, time between NPRM and final rule, and time between the pre-NPRM start of the process and final rule for one agency). In some cases, agencies do publish Advance NPRMs, but because they are not consistently issued, the commencement of rulemaking is still generally connected to the NPRM. In significant rulemakings reviewed by OIRA, there are measures of the time OIRA took to review an NPRM before it was published. The length of that process varies.
197. See McLaughlin, supra note 68, at 28. Despite seeming variation in the length of that process, researchers have not used the date of submission to OIRA as the start of the rulemaking process.
198. Years run from January 20 of one year to January 19 of the following year. Thus, an NPRM issued on January 5, 2001 is counted as a 2000 NPRM. Because I have only partial data on 2010-from the spring edition but not the fall edition, of the Unified Agenda-I do not include 2010 in the figures in this Part.
199. Actions are deemed "significant" if the priority code field is listed as economically significant or otherwise significant or if the major field was coded as "yes."
200. See supra text accompanying note 15.
201. The overall decline in executive agency NPRMs after 1998 is driven by the IRS switching from an executive agency to an independent agency in the coding.
202. See supra note 88 and accompanying text.
203. That was a decline from most of the years in the preceding Administration.
204. See Kagan, supra note 51, at 2283-84.
205. O'Connell, supra note 33, at 956 & n.214.
206. Id. at 957.
207. See Anne Joseph O'connell, WAITING FOR LEADERSHIP: PRESIDENT OBAMA'S RECORD IN STAFFING KEY AGENCY POSITIONS AND HOW TO IMPROVE THE APPOINTMENTS PROCESS 11-12 (2010).
208. See kenneth R. Mayer, WITH THE STROKE OF A PEN: EXECUTIVE ORDERS AND PRESIDENTIAL POWER 3-33 (2001).
209. Administration of William J. Clinton (1993-2001): Disposition of Executive Orders Signed by President William J. Clinton, THE NAT'L ARCHIVES, http://www.archives.gov/federalregister/executive-orders/clinton.html (last visited Aug. 20, 2011)
210. Administration of George W. Bush (2001-2009): Disposition of Executive Orders Signed by President George W. Bush, THE NAT'L ARCHIVES, http://www.archives.gov/federal-register/executive-orders/wbush.html (last visited Aug. 20, 2011). More attention has been paid instead to the spike in executive orders at the end of an administration.
211. See l. Elaine Halchin, CONG. RESEARCH SERV., RL 34722, PRESIDENTIAL TRANSITIONS: ISSUES INVOLVING OUTGOING AND INCOMING ADMINISTRATIONS 10-13 (2008) (showing spike in executive orders at the end of the past five Administrations)
212. Beermann, supra note 28, at 970 (showing increase in executive orders at the end of the Clinton Administration)
213. Howell & Mayer, supra note 68, at 538-39 (showing uptick in executive orders in a president's final months).
214. See, e.g., Fahrenthold, supra note 3
215. Smith, supra note 4
216. infra text accompanying note 179.
217. The first quarter includes actions from February, March, and April. The second quarter includes actions from May, June, and July. The third quarter includes actions from August, September, and October. The fourth quarter includes actions from November, December, and January of the subsequent year. The fourth quarter matches, albeit imperfectly, the period between a November election and presidential inauguration (when those occur). These agencies had been directed by the Chief of Staff to issue any NPRMs by June 1, 2008.
218. Bolten Memo, supra note 5. Because June falls in the second quarter, not the third, it appears a large number of NPRMs missed that deadline.
219. See Jerry L. Mashaw, Improving the Environment of Agency Rulemaking: An Essay on Management, Games, and Accountability, 57 L. & CONTEMP. PROBS. 185, 198 n.41 (1994).
220. Joshua D. Clinton & David E. Lewis, Expert Opinion, Agency Characteristics, and Agency Preferences, 16 POL. ANALYSIS 3, 17-19 (2008). If the confidence interval of the agency's score in-cluded 0, the agency was coded as neutral. This typology has weaknesses. Most troubling is that ideol-ogy, derived from expert surveys, does not vary by party or administration. In other words, an agency has the same ideological label regardless of whether members of the Republican or Democratic Party currently staff its top ranks.
221. O'Connell, supra note 33, at 942-46.
222. Yackee & Yackee, Divided, supra note 67, at 134. When they look at cabinet departments and other agencies separately, the result holds only for the former category; they find no significant relationship between divided government and the issuance of NPRMs by noncabinet departments. Id. at 138. Moreover, they find no significant relationship between divided government and the issuance of significant NPRMs. Id.
223. See infra notes 190-91 and accompanying text.
224. See Mendelson, supra note 28, at 563-64.
225. See Howell & Mayer, supra note 68, at 546-47.
226. See P.S. Ruckman Jr., "Last-Minute" Pardon Scandals: Fact and Fiction (Apr. 15, 2004) (unpublished manuscript), available at http://www.rvc.cc.il.us/faclink/pruckman/pardoncharts/Paper2.pdf.
227. See generally Beermann, supra note 28 (describing phenomenon of midnight regulations)
228. Mendelson, supra note 28, at 561-63 (same).
229. See supra note 15 and accompanying text.
230. See supra note 105.
231. See Bolten Memo, supra note 5.
232. See supra note 105 and accompanying text.
233. O'CONNELL, supra note, at 937 n.139.
234. Id. at 956-57. This work used a wider definition of final action to include interim and direct final rules.
235. Yackee & Yackee, Divided, supra note 67, at 134-138.
236. See, e.g., Yackee & Yackee, Ossified, supra note 67, at 267-68.
237. See, e.g., Yackee & Yackee, Bias, supra note 69, at 131-32
238. Yackee, supra note 69, at 730.
239. In almost all cases, unfinished rules can be withdrawn without prior notice and opportunity for comment. Nevertheless, the decision to withdraw a proposed rule may face judicial scrutiny.
240. See Gersen & O'Connell, supra note 23, at 1186-97. The withdrawal of a proposed rule differs from a rule rescission, which is the reversal, typically through notice and comment, of a completed rule.
241. See Curtis W. Copeland, CONG. RESEARCH SERV., R40713, THE UNIFIED AGENDA: IMPLICATIONS FOR RULEMAKING TRANSPARENCY AND PARTICIPATION 7-8 (2009). Withdrawals do appear to be regularly reported.
242. See infra note 152.
243. I have done some limited work considering these connections.
244. See O'CONNELL, supra note, at 957 n.177.
245. Emanuel Memo, supra note 1, at 4435
246. Jack, supra note 28, at 1482.
247. See supra notes 1-2, 8 and accompanying text.
248. Cf. Eric Lipton, With Obama, Regulations Are Back in Fashion, N.Y. TIMES, May 13, 2010, at A15 ("The push for some of the [regulatory] measures began at the end of the Bush administration, a tacit acknowledgement that its deregulatory agenda had gone too far.").
249. See supra note 15 and accompanying text.
250. O'CONNELL, supra note, at 937 n.139.
251. Id. at 962-63.
252. I chose the start of this subset to avoid the selective inclusion of President Carter's rulemakings in the Unified Agenda, and I chose the end to exclude rulemakings that had been started and completed under President Obama. Because the end date of the available Unified Agendas at the time of writing is 2010, these later rulemakings are forced to have short durations. I also eliminated observations with zero or negative duration; such observations exist because of some of the automated coding of regulatory actions of the Unified Agenda. In the analysis presented here, the final action or rule is not necessarily the last action of the rulemaking process. Instead, the date of the final action or rule is the latest date of such an action for a particular RIN.
253. Because there is variation among the agencies in what they report to the Unified Agenda, it is important to look at an agency over time and to control, at least to some extent, for specific agencies.
254. See supra note 107 and accompanying text.
255. This Article does not explore in any depth the plausibility of various explanations for this interesting difference.
256. Gersen & O'Connell, supra note 48, at 945-988.
257. An earlier article on the duration of rulemaking made several contestable modeling assumptions.
258. See Gersen & O'Connell, supra note 48, at 945-49. First, to analyze rulemaking duration, the article used a Cox proportional hazards model, which assumes that the proportionality of hazards does not vary over time. That assumption, however, does not hold for many of the explanatory variables. Second, the article treated political transitions in a simple manner. To start, the transitions were used as explanatory variables in the model about duration (roughly, thinking about transitions influencing duration), but the relationship also works in the other direction. In addition, political transitions were treated as time invariant. We might think that a person's risk of dying, given age and other invariant characteristics, is different before and after a transplant. Similarly, the pace of rulemaking may vary before and after a political transition. Finally, the earlier discussion of results suggested causal relationships for statistically significant variables. It is more precise to say these variables are linked or correlated in specific ways with the dependent variable. In this Article, I address these concerns in ways that seem more in keeping with the underlying data and restrictions on the statistical models used.
259. See, e.g., U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 69, at 17-19
260. Johnson, supra note 69, at 784.
261. See, e.g., Shapiro, Ossification, supra note 69, at 18-21. Ordinary least squares regression allows the prediction of negative duration.
262. See William H. Greene, ECONOMETRIC ANALYSIS 937-38 (4th ed. 2000). By contrast, hazard models treat duration as a temporal dependent variable, which avoids such a problematic prediction and permits the inclusion of censored observations.
263. Id.
264. Yackee & Yackee, Ossified, supra note 67.
265. See generally GREENE, supra note 140, at 937-51 (providing background on hazard models)
266. Janet M. Box-Steffensmeier & Bradford S. Jones, Time Is of the Essence: Event History Models in Political Science, 41 AM. J. POL. SCI. 1414, 1417-21 (1997) (same)
267. Bradley Efron, Logistic Regression, Survival Analysis, and the Kaplan-Meier Curve, 83 J. AM. STAT. ASS'N 414 (1988) (same).
268. The Cox model is less restrictive than other hazard models, such as the exponential or Weibull models because it does not impose a specific functional form (for example, increasing) on the baseline hazard function.
269. Box-Steffensmeier & Jones, supra note 142, at 1432-33. The Cox model does, however, assume that the proportionality of hazards-that the hazard functions of rulemakings with different explanatory or covariate values differ only by a proportional factor-is constant over time.
270. Id. at 1433. This assumption can be tested for the explanatory variables used in the model and if violated largely corrected.
271. See Janet M. Box-Steffensmeier & Christopher J.W. Zorn, Duration Models and Proportional Hazards in Political Science, 45 AM. J. POL. SCI. 972, 975-78 (2001)
272. Yackee & Yackee, Ossified, supra note 67, at 274-75.
273. It would be possible to use the censored observations in a competing-risk Cox model where the outcome could be either a rule or a withdrawal.
274. I also ran an alternative model with two-chamber congressional transitions instead of presidential transitions.
275. Cf. Charles R. Shipan & Megan L. Shannon, Delaying Justice(s): A Duration Analysis of Supreme Court Confirmations, 47 AM. J. POL. SCI. 654-664 (2003) (including a variable for the time remaining in the congressional session in a hazard model of the time taken to confirm Supreme Court nominees). For an NPRM issued in the first term of a two-term presidency, this variable is the time between the end of the first term and the NPRM. The agency does not know in the first term whether the president will be reelected. Using the time to the end of the administration, as realized, does not change the results in any meaningful way.
276. It could be argued that this variable is problematic in the same way that the time-invariant covariate for a presidential transition is problematic: in order to get to a midnight quarter, on average, the rulemaking process has to have gone on longer. But the time-varying covariate is trying to capture the effect on the hazard rate in that period.
277. Independent agencies are the dropped-agency type to which the other variables should be compared.
278. The analysis for any model presented or discussed in this and the subsequent section can be obtained from the author upon request.
279. See supra note 143. I also divided the data into three sets-one for conservative agencies, one for liberal agencies, and one for neutral agencies-and ran the model on each set. All of the results are largely similar, except for the levels of government variables (which shift around in each set). In addition, for liberal agencies, executive agencies become significant and are linked to longer durations, and for conservative agencies, the deadline variable just loses significance. In addition, I also employed stratified estimation for several covariates-local government affected, federal government affected, and agency ideology-so that the baseline hazard functions of those variables are allowed to vary while the coefficients of the other variables are constrained to be equal across the strata. The results are mostly similar, in terms of sign and significance, including those variables and interaction terms of those variables with analysis time.
280. Yackee & Yackee, Ossified, supra note 67.
281. Because deadlines, one of the explanatory variables analyzed in this Part, were not reliably reported until the fall 1988 Unified Agenda, a subset of the database is used for the regression model. Agendas do cover earlier actions, so many rulemakings under President Reagan are included in the section of the database analyzed here. From the fall 1988 to the spring 2010 Unified Agendas, there are 18,127 RINs that reported an NPRM with an actual date. Of those, 15,510 had a final action or withdrawal with an actual date also reported. Consequently, close to 2500 RINs are excluded from the analysis. If these RINs are correlated with particular variables, we should be worried about the validity of the results. Some of the excluded RINs are NPRMs from recent years. Because the rulemaking process takes considerable time to complete (or to lead to a withdrawal), the timing of those NPRMs explains why those RINs do not have a reported final action or withdrawal. Assuming that the explanatory variables are not correlated in different ways with the final expected outcome for recent NPRMs than for NPRMs in earlier periods, the exclusion of those RINs should not bias the results. Some of the excluded RINs are NPRMs that did come to resolution, but that resolution was not a final rule or withdrawal or was not coded as a final rule or withdrawal. As for the first, an RIN might have an NPRM but then end up being combined with another RIN. That action is coded in the Unified Agenda, but because it is not a final action or withdrawal, such an RIN would be dropped here. As for the second, some agencies have reported final actions (completions or withdrawals) in an "other" action category in the Unified Agenda; these outcomes if coded as "other" actions are not included here if reported in a 2003 or earlier edition of the Unified Agenda.
282. See O'CONNELL, supra note, at 984. More of these final actions are captured if reported in a 2004 or later edition of the Unified Agenda. To the extent that the miscoding affects final rules and withdrawn rules similarly, the analysis should not be undermined in any fundamental way, but more research needs to be done on these "other" actions. Finally, some of the excluded RINs are abandoned actions. In other words, they should be coded as withdrawals, but the agency never officially reported the suspension to the Agenda perhaps because the agency did not want to make the suspension permanent. This means that a higher percentage of actions started with an NPRM should be considered to have ended in withdrawal. So long as these abandoned in practice (but not abandoned in the Unified Agenda and hence in the coded data), NPRMs are not too numerous or are not correlated in conflicting directions with reported withdrawals, the analysis here should only understate the correlation between certain explanatory variables and withdrawn regulations. Cf. Yackee & Yackee, Testing, supra note 69, at 142 ("[I]n many cases [interior] agencies fail to issue notice [in the Federal Register] that a rulemaking has been abandoned"). Future research should employ a censored competing risk Cox proportional hazards model to deal with this missing information.
283. 153 I ran models with a presidential change variable that covered only a change of party (i.e., that excluded the transition from President Reagan to President George H.W. Bush). The coefficient on the presidential change increases slightly (making a withdrawal more likely), but the results do not change in any meaningful way.
284. 154 Because new Congresses start on January 3 (and not January 20, like new presidents), I used calendar years to calculate the congressional change variable.
285. Gersen & O'Connell, supra note 48.
286. Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 ADMIN. L. REV. 1111, 1141-44 (2000) (discussing the scope of the removal power) Compare Humphrey's Ex'r v. United States, 295 U.S. 602, 631-32 (1935), with Myers v. United States, 272 U.S. 52, 134 (1926).
287. See supra note 17, at 900 n.26.
288. Exec. Order No. 12,866, supra note 5, § 4(c) (defining "agency" to include independent regulatory commissions only for the regulatory plan mandate).
289. See FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1815 (2009) ("The independent agencies are sheltered not from politics but from the President, and it has often been observed that their freedom from presidential oversight (and protection) has simply been replaced by increased subservience to congressional direction.")
290. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573-592 (1984) ("[A]s a former FTC Chairman recently remarked, the independent agencies 'have no lifeline to the White House. [They] are naked before Congress, without protection there,' because of the President's choice not to risk the political cost that assertion of his interest would entail." (quoting Calvin Collier, Chairman, Fed. Trade Comm'n, Remarks to the Assembly of the Administrative Conference of the United States (Dec. 15, 1983)))
291. Barry R. Weingast & Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J. POL. ECON. 765-792 (1983) ("[T]he FTC [an independent agency] is remarkably sensitive to changes in the composition of its oversight subcommittee and in its budget.").
292. See Keith S. Brown & Adam Candeub, Independent Agencies and the Unitary Executive: An Empirical Critique 1 (Mich. State Univ. Coll. of Law, Legal Studies Research Paper No. 06-04, 2008), available at http://ssrn.com/abstract=1100125 (concluding that FCC commissioners "pursue individual agenda[s], not the President's or Congress's as an institution").
293. But see David Hedge & Renee J. Johnson, The Plot That Failed: The Republican Revolution and Congressional Control of the Bureaucracy, 12 J. PUB. ADMIN. RES. & THEORY 333, 342-46 (2002) (showing that the EEOC and NRC reduced regulation immediately after the Republicans took control of Congress in 1995 but that regulatory actions increased several years later)
294. Daniel E. Ho, Congressional Agency Control: The Impact of Statutory Partisan Requirements on Regulation 1 (Feb. 12, 2007), (unpublished manuscript), available at http://dho.stanford.edu/research/partisan.pdf (determining that congressional "partisan requirements [on the appointment of FCC commissioners] may have considerable effects on substantive policy outcomes")
295. 533 U.S. 218 (2001).
296. See O'CONNELL, supra note, at 917-18
297. Matthew C. Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 HARV. L. REV. 528-529 (2006) ("[F]rom the perspective of an agency subject to judicial review, textual plausibility and procedural formality function as strategic substitutes: greater procedural formality will be associated with less textual plausibility, and vice versa.").
298. An alternative would have been to include the IRS as a dummy variable. Doing so, however, would prevent clustering the standard errors on agencies, which is needed because observations from the same agency are not always independent. Thus, I chose to drop the IRS observations and use clustering to deal with nonindependence in the standard errors. The results are largely similar in a model including only rulemaking processes from the IRS except that the deadlines variable loses significance in the IRSonly model.
299. I ran the following alternative models: one including a variable for two-chamber changes and a variable for one-chamber changes (using 1981, 1987, and 2001), and one including a variable for twochamber changes and a variable for one-chamber changes (using 1981 and 1987, but not 2001). In May 2001, Senator Jeffords, an Independent, decided to caucus with the Democrats; that action gave Democrats bare control of the chamber.
300. See supra note 38.
301. The addition of one-chamber changes as a variable in the model depresses the coefficient on the presidential change variable (understandably as two of the transitions, 1981 and 2001, are counted as presidential and congressional transitions in such a model) and increases slightly the coefficient on the two-chamber congressional transition variable. The addition changes the results in Table 2 in one other significant way. The coefficient for the Mead decision loses its significance when either one-chamber change variable (including or excluding 2001) is included.
302. The coefficient for the Mead decision loses its significance when a variable marking the year of the NPRM is included.
303. The level of significance of the Mead decision variable does improve so that the p-value is less than 0.05.
304. See supra note 164.
305. See Gersen & O'Connell, supra note 23, at 1195-96 (noting that courts "do not... address the elephant in the room when it comes to agency withdrawals: political transitions")
306. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 YALE L.J. 2-7 (2009) ("Judicial review of agency action is... technocratic in focus.").
307. But see, e.g., Bonnichsen V. United States, 217 F. Supp. 2d 1116-1125 (D. Or. 2002) (remarking, but not relying on, the fact that the Army Corps of Engineers "t[ook] advantage of a brief congressional recess" to announce its decision to bury a site with dirt and rubble where human remains had been discovered).
308. See supra note 169.
309. See Nina A. Mendelson, Disclosing "Political" Oversight of Agency Decision Making, 108 MICH. L. REV. 1127, 1127-1146-59 (2010) ("[P]residential supervision of agency rulemaking... appears to be both significant and opaque.")
310. Watts, supra note 169, at 14-29 (demonstrating agencies' reluctance to discuss politics in explaining their decisions).
311. See Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61, 145-48 (2006)
312. O'CONNELL, supra note, at 975-78.
313. See O'CONNELL, supra note, at 967-71. Some scholars, of course, have addressed the role of congressional influence on agency action.
314. See Beermann, supra note 172, at 69-144
315. J.R. DeShazo & Jody Freeman, Public Agencies as Lobbyists, 105 COLUM. L. REV. 2217, 2241-43 (2005)
316. J.R. DeShazo & Jody Freeman, The Congressional Competition to Control Delegated Power, 81 TEX. L. REV. 1443, 1466-87 (2003)
317. Neal E. Devins, Regulation of Government Agencies Through Limitation Riders, 1987 DUKE L.J. 456, 456-71
318. Gersen & O'Connell, supra note 48, at 937-49
319. Richard J. Lazarus, The Neglected Question of Congressional Oversight of EPA: Quis Custodiet Ipsos Custodes (Who Shall Watch the Watchers Themselves)?, 54 LAW & CONTEMP. PROBS. 205, 206-26 (1991).
320. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984) ("While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices-resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.").
321. See Skidmore V. Swift & Co., 323 U.S. 134, 137-38 (1944) ("Pursuit of [the agency official's] duties has accumulated a considerable experience in the problems of ascertaining working time in employments involving periods of inactivity and a knowledge of the customs prevailing in reference to their solution.").
322. Cf. O'CONNELL, supra note, at 978-81 (suggesting that stability in rulemaking may suggest lack of political influence and dominance of technical expertise, which could justify deference under Skidmore's reasoning).
323. See Gersen & O'Connell, supra note 23, at 1201-02.
324. See Gersen & O'Connell, supra note 48, at 962.
325. See, e.g., Jay Cochran, Clinton's 'Cinderellas' Face Regulatory Midnight, USA TODAY, Dec. 13, 2000, at 17A ("Respect for the law erodes when it changes for no other apparent reason than the fact that an administration's drop-dead date draws near.")
326. Al Kamen, Placing Pryor Restraint on Republicans; Democratic Senator Warns Officials Against Transition Hanky-Panky, WASH. POST, Nov. 5, 1992, at A21 ("Pryor said, 'It would be unfortunate if the transition period is used to push through regulations which otherwise would not have been proposed or issued.'")
327. Murray Weidenbaum, Hold Those Midnight Rules, CHRISTIAN SCI. MONITOR, Jan. 17, 2001, at 11 ("[I]n the fine print we learn that steps were taken to 'streamline' and otherwise speed up the process by which these proposals are vetted by the various federal agencies and disputes between them resolved.")
328. Linda Sánchez, Push Back Against the Dead Hand of a Lame Duck, ROLL CALL (Dec. 8, 2008), http://www.rollcall.com/issues/54_62/30594-1.html.
329. See Beermann, supra note 28, at 952-53, 1005
330. Mendelson, supra note 28, at 603, 616-63
331. O'CONNELL, supra note, at 915-16, 971-75.
332. See O'CONNELL, supra note, at 974.
333. See, e.g., H.R. 34, 111th Cong. (2009); S. 8, 111th Cong. (2009); H.R. 7296, 110th Cong. (2008)
334. Beermann, supra note 28, at 1004-05 (noting several possibilities for restricting late-term action)
335. Jack M. Beermann, Combating Midnight Regulation, 103 NW. U. L. REV. COLLOQUY 352 (2009), http://www.law.northwestern.edu/lawreview/colloquy/2009/9/LRColl2009n9Be ermann.pdf (discussing one proposal that would have suspended the effective date of rules in the final ninety days of an administration until at least ninety days into the new administration).
336. Cf. Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. CHI. L. REV. 361, 434-36 (2004) (explaining that several state constitutions prohibit legislators from introducing bills in the final days of the legislatures' sessions)
337. See, e.g., Cochran, supra note 179 (from the right)
338. Kamen, supra note 179 (from the left)
339. Wei-denbaum, supra note 179 (from the right)
340. Sánchez, supra note 179 (from the left).
341. Cf. Beermann, supra note 28, at 1006 (noting potential constitutional problems with any attempt by Congress to restrict the exercise of executive power).
342. O'CONNELL, supra note, at 974.
343. Id.
344. Many of these strategies can be modified for outgoing and incoming Congresses.
345. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1983) (explaining that "rescission or modification of an occupant-protection standard is subject to" arbitrary and capricious review).
346. There are some exceptions. See Gersen & O'Connell, supra note 23, at 1188-89 ("First, if the relevant statutory scheme expressly contemplates the withdrawal of a proposed regulatory action in particular circumstances, courts will typically review the withdrawal Second, even if the statutory scheme does not explicitly contemplate the withdrawal of proposed regulations, courts will often review agency decisions to abandon proposed action if the applicable statute imposes mandatory obligations on the agency to act.").
347. 5 U.S.C. § 553(d) (2006) ("The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except-(1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule.").
348. 5 U.S.C. § 801(a)(3) (2006) ("A major rule relating to a report submitted under paragraph (1)shall take effect on the latest of-(A) the later of the date occurring 60 days after the date on which-(i) the Congress receives the report submitted under paragraph (1); or (ii) the rule is published in the Federal Register, if so published").
349. See supra notes 117-18 and accompanying text.
350. I have previously discussed these strategies in an online report. See O'CONNELL, supra note, at 11-15.
351. See, e.g., Card Memo, supra note 8, at 7702 ("With respect to regulations that have been sent to the OFR but not published in the Federal Register, withdraw them from OFR for review and approval as described in paragraph 1, subject to exception as described in paragraph 1. This withdrawal must be conducted consistent with the OFR procedures.").
352. Id. ("Finally, in the interest of sound regulatory practice and the avoidance of costly, burdensome, or unnecessary regulation, independent agencies are encouraged to participate voluntarily in this review.").
353. See 5 U.S.C. § 704 (2006).
354. See 5 U.S.C. § 706(2)(A) (reviewing most agency action under an "arbitrary and capricious" standard).
355. Natural Res. Def. Council, Inc. v. Abraham, 355 F.3d 179, 204-06 (2d Cir. 2004) (holding that the Department of Energy's suspension of the effective date of prior regulation did not comply with the APA's requirements)
356. Pub. Citizen v. Steed, 733 F.2d 93, 105 (D.C. Cir. 1984) (holding that the National Highway Traffic Safety Administration's indefinite suspension of treadwear grading requirements did not comply with the APA); Natural Res. Def. Council, Inc. v. EPA, 683 F.2d 752, 760-62 (3d Cir. 1982) (scrutinizing the EPA's indefinite postponement of amendments to pollution regulations for compliance with the APA's procedural requirements); Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573, 580-83 (D.C. Cir. 1981) (reviewing the Department of Labor's postponement of implementation of mine safety regulations under the APA).
357. See Emanuel Memo, supra note 1
358. Memorandum from Peter R. Orszag, Dir., Office of Mgmt. & Budget, to Heads and Acting Heads of Executive Departments and Agencies 2 (Jan. 21, 2009) [hereinafter Orszag Memo], available at http://www.ombwatch.org/files/regs/PDFs/OrszagMemo09-08.pdf (instructing agencies that in order to "extend" the effective date of a regulation, they must "promptly provide a 30-day notice-and-comment period, seeking public comment about both [the] contemplated extension of the effective date and the rule in question" among other items); supra text accompanying note 1.
359. See Beermann, supra note 28, at 984 n.122, 993.
360. This is different than not defending a regulation in court. The Obama Administration instructed agencies to consider that possibility in particular circumstances. Orszag Memo, supra note 199, at 2 ("In special cases, and only upon further consultation with [Office of Legal Counsel] and OIRA, you may consider the appropriateness of not defending a legally doubtful rule in the face of a judicial challenge.").
361. See generally Rossi, supra note 28, at 1032-43 (examining "rulemaking settlements" by outgoing and incoming presidential administrations).
362. Katharine Q. Seeyle, U.S. to Reassess Snowmobile Ban in a Park, N.Y. TIMES, June 30, 2001, at A10
363. see also Rossi, supra note 28, at 1041. Both environmentalists and snowmobile makers saw the additional review as a possible mechanism to undo the Clinton ban that was set to take effect in 2002.
364. See Seeyle, supra. As with suspensions of effective dates of midnight regulations, rulemaking settlements also may be subject to judicial review at two points. First, the court decides whether to approve the settlement.
365. See Rossi, supra note 28, at 1044-45. Second, the court may be asked to assess the validity of the rule once it has been enacted.
366. See id. at 1051. There seems, however, to be no significant case law on the legitimacy of a rulemaking settlement itself. An agency can better protect itself from a legal challenge by providing a rational justification for its decision to enter into a settlement barring the enforcement and mandating the revision of a midnight regulation.
367. See id. at 1040-43. Rulemaking settlements may be less attractive to incoming administrations that are more pro-regulatory than the outgoing administration. For instance, a settlement to not enforce a regulation that allows truck drivers to be on the road for longer periods may not be attractive. In such a case, the incoming administration could institute new notice-and-comment procedures to make a stricter rule but keep the problematic rule in place while it did that.
368. 5 U.S.C. §§ 801-808 (2006). The CRA is considered fast-track legislation because it gets around the cloture rule in the Senate.
369. See HALCHIN, supra note 103, at 6-8. Congress can, of course, repeal almost any regulation at any time through the ordinary legislative process.
370. COPELAND, supra note 8, at 15.
371. Id. at 13-15.
372. The nature of the transition-incoming congressional majorities and the White House being from the same party and rules enacted by an outgoing administration of the opposing party-was the most conducive to the CRA's use since its adoption.
373. See Charlie Savage, Democrats Look for Ways to Undo Late Bush Administration Rules, N.Y. TIMES, Jan. 12, 2009, at A10.
374. See supra Part IV. As lengthy as these average durations are, they do not account for the time needed to develop the NPRM.
375. It took until late April to get all fifteen of President Obama's cabinet secretaries in place. The past five presidents-Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush-all finished the appointment process faster by at least a month. SEC'Y OF THE SENATE, PRESIDENTIAL CABINET NOMINATIONS: PRESIDENT JIMMY CARTER THROUGH PRESIDENT GEORGE W. BUSH, available at http://www.senate.gov/reference/resources/pdf/cabinettable.pdf
376. O'CONNELL, supra note 101, at 22 n.3.
377. See O'CONNELL, supra note 101, at 2. The Reagan Administration had filled 86.4%; the George H.W. Bush Administration had 80.1% in place; the Clinton Administration stood at 69.8%; and the George W. Bush Administration had staffed 73.8% of the jobs.
378. Id.
379. Exec. Order No. 12,866, supra note 5, at 642
380. see also Exec. Order No. 13,422, supra note 5
381. Exec. Order No. 12,291, 3 C.F.R. 127, 131-34 (1982), repealed by Exec. Order No. 12,866, supra note 5.
382. See KERWIN, supra note 68, at 226 (showing decreasing percentage of agency rules approved without change from 1981 to 2001)
383. Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. CHI. L. REV. 821, 848-49 (2003). For instance, in May 2007, the National Oceanic and Atmospheric Administration submitted a proposal to limit the fishing of krill, an important food source for whales and other species in the Pacific Ocean. OIRA rejected (temporarily) the proposed rule in October.
384. See Letter from Susan E. Dudley, Adm'r, Office of Info. & Regulatory Affairs, to John J. Sullivan, Gen. Counsel, U.S. Dep't of Commerce (Oct. 30, 2007), available at http://www.reginfo.gov/public/return/return_doc_20071030.pdf.
385. The last two Administrations have used explicit directives to agencies to encourage regulatory action.
386. See Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1277-80 (2006) (discussing the use of "prompt letters" by OIRA)
387. Kagan, supra note 51, at 2290-99.
388. U.S. GEN. ACCOUNTING OFFICE, FEDERAL RULEMAKING: AGENCIES OFTEN PUBLISHED FINAL ACTIONS WITHOUT PROPOSED RULES 6-7 (1998)
389. see supra Part III.A
390. see also Michael Asimow, Public Participation in the Adoption of Temporary Tax Regulations, 44 TAX L. 343, 343-44 (1991) (examining the use of interim final rules in the Department of the Treasury)
391. Lars Noah, Doubts About Direct Final Rulemaking, 51 ADMIN. L. REV. 401, 401-02 (1999) (discussing the allure of direct final rulemaking).
392. See Gersen & O'Connell, supra note 48, at 956-59 (discussing various cases in the presence of statutory deadlines).