Regulatory moratoria

Duke Law Journal

Volumn 61, Issue 8, 2012, Pages 1883-1955

  Watts, Kathryn A ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

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EID: 84864801689     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (352)

1. See, e.g., Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61 (2006) (examining congressional involvement in the administration of the laws).
2. James F. Blumstein, Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues, 51 DUKE L.J. 851, 851-52 (2001) (examining centralized presidential control of regulatory activities and arguing in favor of it).
3. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001) (examining the "recent and dramatic transformation in the relationship between the President . . . and the administrative state").
4. Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165 (1984) (arguing that scholars have underestimated congressional involvement in oversight of administrative agencies).
5. Some regulatory moratoria are subject-specific-meaning that they apply only to regulations involving specific topics like greenhouse gases or healthcare. See, e.g., H.J. Res. 22, 27th Leg., 1st Sess. (Alaska 2011) (resolving that "the Alaska State Legislature calls on the United States Congress to pass legislation prohibiting the United States Environmental Protection Agency from regulating greenhouse gas emissions").
6. S. 23, 151st Gen. Assemb., Reg. Sess. (Ga. 2011) (proposing to impose a moratorium on rulemaking with respect to the implementation and enforcement of the Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the U.S. Code)).
7. Exec. Order No. 2011-03 para. 1 (Idaho Apr. 20, 2011), available at http://gov.idaho.gov/pdf/Executive%20Order%202011-03.pdf (directing that executive agencies within the state shall not promulgate "any rule to implement any provisions" of the ACA). Some moratoria also involve limits on appropriations in the form of targeted riders that prohibit specific regulatory activity.
8. See generally CURTIS W. COPELAND, CONG. RESEARCH SERV., RL 34354, CONGRESSIONAL INFLUENCE ON RULEMAKING AND REGULATION THROUGH APPROPRIATIONS (2008) (describing regulatory restrictions in appropriations bills). This Article focuses only on generalized regulatory moratoria rather than subject-specific moratoria.
9. Although this Article studies only regulatory moratoria in the United States, at least one other country-Mexico-has imposed a generalized one-year moratorium to boost its economy. See, e.g., ORG. FOR ECON. CO-OPERATION & DEV., MEXICO: PROGRESS IN IMPLEMENTING REGULATORY REFORM 45 (2004) (noting that President Vicente Fox published a presidential decree in 2004 restricting new regulation until April 2005 and forcing federal agencies to conduct a review of existing regulations). In addition, in 2011, the United Kingdom announced a narrower moratorium on new domestic regulation for microbusinesses and start-ups. DEP'T FOR BUS. INNOVATION & SKILLS, HM TREASURY, THE PLAN FOR GROWTH 56 (2011), available at http://cdn.hm-treasury.gov.uk/2011budget_growth.pdf.
10. See infra Part I.A.1.
11. See infra notes 41-66 and accompanying text.
12. Regulatory Transition Act of 1995, H.R. 450, 104th Cong. §§ 3(a), 6(2) (1995).
13. Regulatory Transition Act of 1995, S. 219, 104th Cong. § 103 (1995).
14. see also 141 CONG. REC. 5880-81 (1995) (noting that 276 representatives voted in favor of the House bill).
15. Stop the Regulation Invasion Please Act of 2011, H.R. 3181, 112th Cong. (2011).
16. See infra notes 99-102 and accompanying text.
17. Exec. Order No. 2, N.Y. COMP. CODES R. & REGS. tit. 9 § 5.2 (1995).
18. Tom Precious, Pataki Tightens Reins on Regulation, TIMES UNION (Albany, N.Y.), Jan. 6, 1995, at A1.
19. The phrase "at least" is used very purposefully because the number might be higher. Although the goal in conducting the research for this Article was to be as exhaustive as possible, some instances of moratoria or proposals for moratoria may have been missed. This possibility is heightened at the state level given the difficulty of conducting research involving all fifty states and the lack of easily searchable, comprehensive electronic databases for some state-level materials, such as executive orders. See infra notes 379-84 and accompanying text.
20. See infra Part I.B.
21. For examples of scholarly discussion of presidential reliance on rulemaking suspensions, withdrawals, or freezes after a change in administration, see Jack M. Beermann, Presidential Power in Transitions, 83 B.U. L. REV. 947, 983-84 (2003).
22. Peter D. Holmes, Paradise Postponed: Suspensions of Agency Rules, 65 N.C. L. REV. 645, 646 (1987).
23. Thomas O. McGarity, Jogging in Place: The Bush Administration's Freshman Year Environmental Record, 32 ENVTL. L. REP. 10,709, 10,715 (2002).
24. Anne Joseph O'Connell, Agency Rulemaking and Political Transitions, 105 NW. U. L. REV. 471, 471-72, 473 n.8 (2011).
25. William M. Jack, Comment, Taking Care That Presidential Oversight of the Regulatory Process Is Faithfully Executed: A Review of Rule Withdrawals and Rule Suspensions Under the Bush Administration's Card Memorandum, 54 ADMIN. L. REV. 1479, 1483-84 (2002).
26. B.J. Sanford, Note, Midnight Regulations, Judicial Review, and the Formal Limits of Presidential Rulemaking, 78 N.Y.U. L. REV. 782, 782 (2003).
27. The only article that treats regulatory moratoria in any detail-outside of the context of moratoria imposed at the beginning of new presidential administrations-is a piece that focuses on the impact of a 1992 regulatory moratorium ordered by President George H.W. Bush during the last year of his presidency. See Scott R. Furlong, The 1992 Regulatory Moratorium: Did It Make a Difference?, 55 PUB. ADMIN. REV. 254 (1995) (concluding that President Bush's moratorium had little impact).
28. Jonathan H. Adler, Misguided Case for Regulatory Moratorium, THE VOLOKH CONSPIRACY (Sept. 26, 2011, 10:46 PM), http://volokh.com/2011/09/26/misguided-case-forregulatory-moratorium.
29. Cf. Jim Rossi, Overcoming Parochialism: State Administrative Procedure and Institutional Design, 53 ADMIN. L REV. 551, 553 (2001) ("[C]asebooks, treatises, and scholarship harbor a heavy bias towards federal administrative law, relegating state administrative procedure little, if any, serious attention.").
30. Robert W. Hahn, State and Federal Regulatory Reform: A Comparative Analysis 3 (AEI-Brookings Joint Ctr. for Regulatory Studies, Working Paper No. 98-3, 1998), available at http://ssrn.com/abstract=159578 (noting in a report studying state and federal regulatory reform that "identification of state regulatory reform provisions [had been] difficult because no comprehensive source of data exists").
31. See Whiley v. Scott, No. SC11-592, 2011 WL 3568804, at *5 (Fla. Aug. 16, 2011) (per curiam) (finding an executive-ordered rulemaking suspension in Florida to be improper).
32. see also Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541, 549-50 (1994) (arguing against the proposition that the Founders did not intend to have a strong unitary executive).
33. Peter L. Strauss, Foreword: Overseer, or "The Decider"? The President in Administrative Law, 75 GEO. WASH. L. REV. 696, 759-60 (2007) (arguing that in the context of the "ordinary world of domestic administration" the president's role is to oversee, rather than decide, regulatory matters).
34. Paul R. Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80 COLUM. L. REV. 943, 944 (1980) (analyzing judicially imposed restrictions on ex parte contacts in formal rulemaking and evaluating whether such restrictions should extend to informal rulemaking).
35. See infra Part I.A.1.
36. See infra Part I.A.1.
37. See infra Part I.A.2.
38. President Ronald Reagan, Memorandum Postponing Pending Federal Regulations, PUB. PAPERS 63 (Jan. 29, 1981). Before issuing the memo, President Reagan did obtain the opinion of the Office of Legal Counsel as to the legality of the order. See Presidential Memorandum Delaying Proposed and Pending Regulations, 5 Op. O.L.C. 55, 56 (1981) (concluding that the president has the "authority to direct executive agencies to postpone proposed and pending regulations for a 60-day period").
39. Exec. Order No. 12,291, 3 C.F.R. 127 (1982).
40. Jerry Brito & Veronique de Rugy, Midnight Regulations and Regulatory Review, 61 ADMIN. L. REV. 163, 189 (2009).
41. see also CURTIS W. COPELAND, CONG. RESEARCH SERV., RL 32356, FEDERAL REGULATORY REFORM: AN OVERVIEW 22 (2004) (describing moratoria as "a technique that has been used to assert control over the rulemaking process, particularly for an incoming presidential Administration," beginning with the Reagan administration).
42. On the existence, causes, and problems of midnight rulemaking, see generally CURTIS W. COPELAND, CONG. RESEARCH SERV., RL 34747, MIDNIGHT RULEMAKING: CONSIDERATIONS FOR CONGRESS AND A NEW ADMINISTRATION (2008).
43. Jack M. Beermann, Combating Midnight Regulation, 103 NW. U. L. REV. COLLOQUY 352 (2009), http://www.law.northwestern.edu/lawreview/colloquy/2009/9/LRColl2009n9Beermann.pdf.
44. Christopher Carlberg, Early to Bed for Federal Regulations: A New Attempt To Avoid "Midnight Regulations" and Its Effect on Political Accountability, 77 GEO. WASH. L. REV. 992 (2009).
45. 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).
46. Memorandum for the Heads and Acting Heads of Agencies Described in Section 1(d) of Executive Order 12291, 58 Fed. Reg. 6074, 6074 (Jan. 25, 1993).
47. Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4435, 4435 (Jan. 26, 2009).
48. Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702, 7702 (Jan. 24, 2001).
49. See Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. at 4435 (ordering a freeze on new rules and the withdrawal of regulations that had not been published).
50. Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. at 7702 (same).
51. Memorandum for the Heads and Acting Heads of Agencies Described in Section 1(d) of Executive Order 12291, 58 Fed. Reg. at 6074 (same).
52. Compare Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. at 7702 (suspending for sixty days the effective dates of final regulations that had already been published), with Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. at 4435 (urging agencies to "consider" extending the effective dates of final regulations for sixty days).
53. See President George Bush, Memorandum on Reducing the Burden of Government Regulation, 1 PUB. PAPERS 166 (Jan. 28, 1992).
54. see also President's Regulatory Moratorium, ADMIN. L. NEWS, Spring 1992, at 4 (describing President Bush's moratorium).
55. President George Bush, Address Before a Joint Session of the Congress on the State of the Union, 1 PUB. PAPERS 156, 159 (Jan. 28, 1992).
56. David E. Rosenbaum & Keith Schneider, Bush Is Extending Regulation Freeze as a Great Success, N.Y. TIMES, Apr. 29, 1992, at A1.
57. see also Douglas Jehl, Bush Extends His Suspension of New Government Regulation, L.A. TIMES, Apr. 30, 1992, at A32 ("[A]s Bush spoke of taking a 'wrecking ball' to rigid government rule-making, senior officials inside the White House hinted at another motivation when they referred to new polls showing public distaste for such regulation." (quoting President Bush)).
58. H.R. Con. Res. 307, 102d Cong. (1992).
59. President George H.W. Bush, Remarks on Regulatory Reform, 1 PUB. PAPERS 663, 664 (Apr. 29, 1992).
60. see also Andrew Rosenthal, Outsider Steals Bush's Rose Garden Scene, N.Y. TIMES, Apr. 30, 1992, at A18 ("In its drive to convey the image of a President offering an agenda for the future, the White House sent President Bush into the Rose Garden today for a much-advertised announcement on what he called 'one of my top priorities'-Government deregulation." (quoting President Bush)).
61. A video of President Bush announcing the extension can be found on C-SPAN's website. See Regulatory Moratorium Announcement, C-SPAN (Apr. 29, 1992), http://www.cspanvideo. org/program/25791-1.
62. Robert V. Percival, Separation of Powers, the Presidency and the Environment, 21 J. LAND RESOURCES & ENVTL. L. 25, 40 (2001).
63. Robert D. Hershey Jr., Regulations March On, Despite a Moratorium, N.Y. TIMES, Sept. 21, 1992, at D1.
64. NANCY WATZMAN, PUB. CITIZEN'S CONG. WATCH & CHRISTINE TRIANO, OMB WATCH, VOODOO ACCOUNTING: THE TOLL OF PRESIDENT BUSH'S REGULATORY MORATORIUM, JANUARY-AUGUST 1992, at v (1992).
65. NANCY WATZMAN, PUB. CITIZEN'S CONG. WATCH & CHRISTINE TRIANO, OMB WATCH, THE HIDDEN STORY: WHAT BUSH AND QUAYLE DON'T SAY ABOUT THE REGULATORY MORATORIUM 4 (1992).
66. See President George H.W. Bush, Remarks Accepting the Presidential Nomination at the Republican National Convention in Houston, 2 PUB. PAPERS, 1380, 1384 (Aug. 20, 1992) ("I believe that small business needs relief from taxation, regulation, and litigation. And thus, I will extend for one year the freeze on paperwork and unnecessary Federal regulation that I imposed last winter.").
67. Regulatory Moratorium Remains in Effect Despite Lack of Official Bush Memorandum, DAILY REP. FOR EXECS., Sept. 1, 1992, at 170, available at LEXIS, Doc. No. 1992 DER 170 d20.
68. Quayle Sends Memo Reminding Agencies To Comply with Regulatory Moratorium, DAILY REP. FOR EXECS., Dec. 4, 1992, at 234, available at LEXIS, Doc. No. 1992 DER 234 d33 (quoting Quayle).
69. Even though it appears that President Bush is the only president to date to have ordered a long-term regulatory moratorium outside the context of a political transition, President Obama reportedly gave the strategy some consideration. Specifically, according to the New York Times, in the fall of 2011, President Obama-when faced with an ailing economy and a bid for reelection-considered proposing a regulatory moratorium on some regulations that especially affected the economy. Jeff Zeleny, A Campaign Challenge: Defining Obama, N.Y. TIMES, Sept. 7, 2011, at A24. The president's aides, however, promptly denied the New York Times report.
70. Sam Stein, White House Denies Reports It's Considering Regulation Moratorium, HUFFINGTON POST (Sept. 7, 2011, 12:39 PM ET), http://www.huffingtonpost.com/2011/09/07/obama-jobs-speech-regulation-moratorium_n_952168.html.
71. In addition, at least one candidate for the Republican presidential nomination in 2012, Governor Rick Perry of Texas, campaigned "calling for a six-month moratorium on federal business regulations that he said were holding back job growth nationally." Rick Perry Touts Jobs Record Ahead of 2012, HUFFINGTON POST (Aug. 15, 2011, 2:05 PM ET), http://www.huffingtonpost.com/2011/08/15/rick-perry-jobs-record_n_927271.html.
72. H.R. Con. Res. 307, 102d Cong. (1992).
73. Melissa Healy, GOP Seeks Moratorium on New Federal Regulations, L.A. TIMES, Dec. 13, 1994, at A32.
74. see also Peter Grier, GOP Hopes To Unspool Government Red Tape, CHRISTIAN SCI. MONITOR, Dec. 20, 1994, at 1 ("The GOP, in fact, is pushing the White House to freeze all new rules for 100 days . . . .").
75. Letter from Sally Katzen, Adm'r, Office of Info. & Regulatory Affairs, Office of Mgmt. & Budget, to Rep. Newt Gingrich (Dec. 14, 1994), available at http://archives.clintonpresidentialcenter.org/?u=121594-letter-from-katzen-on-regulatory-moratorium.htm.
76. Regulatory Transition Act of 1995, H.R. 450, 104th Cong. (1995).
77. Zygmunt J.B. Plater, Environmental Law as a Mirror of the Future: Civic Values Confronting Market Force Dynamics in a Time of Counter-Revolution, 23 B.C. ENVTL. AFF. L. REV. 733, 743 (1996).
78. see also Martin Walker, Licence To Pollute the Free World, GUARDIAN (London), Sept. 6, 1995, at 4 ("Gordon Gooch, who lobbies for the petrochemical industry, drafted the first effort-a moratorium on any new federal regulations of any kind.").
79. Representative DeLay apparently acknowledged that "lobbyists offered suggestions for the regulatory reform bill, but [took] issue with assertions that they 'drafted' the legislation in his office." Argument Turns to Shove, TULSA WORLD, Apr. 10, 1997, at A7.
80. H.R. 450 § 2.
81. 141 CONG. REC. 5645 (1995) (statement of Rep. Cardiss Collins).
82. The Regulatory Transition Act of 1995: Hearing Before the Subcomm. on Nat'l Econ. Growth, Natural Res. & Regulatory Affairs of the H. Comm. on Gov't Reform & Oversight, 104th Cong. 160 (1995) (statement of C. Boyden Gray, Partner, Wilmer, Cutler & Pickering).
83. 141 CONG. REC. 5880 (1995).
84. see also John H. Cushman Jr., House Votes To Freeze Regulations as Democrats Fail To Gain Health and Safety Exemptions, N.Y. TIMES, Feb. 25, 1995, at 7 ("The House of Representatives voted today to freeze most new Federal regulations for the rest of the year, with Republicans and Democrats arguing to the debate's bitter end over whether the proposal would endanger the public.").
85. Regulatory Transition Act of 1995, S. 219, 104th Cong. (1995).
86. S. 219-Regulatory Transition Act of 1995: Hearing Before the S. Comm. on Governmental Affairs, 104th Cong. (1995).
87. S. REP. NO. 104-15, at 1-3 (1995).
88. 141 CONG. REC. 9312-14 (1995).
89. 141 CONG. REC. 9580 (1995).
90. See Regulatory Transition Act of 1995, S. 219, 104th Cong. § 106(2) (1995) (defining "significant rule[s]").
91. Compare Regulatory Transition Act of 1995, H.R. 450, 104th Cong. § 3(a) (1995) ("Until the end of the moratorium period, a Federal agency may not take any regulatory rulemaking action, unless an exception is provided under section 5 [of this bill]."), with S. 219 § 103 (noting that "significant" rules may only take effect after a forty-five-day review period).
92. See 141 CONG. REC. 13,265 (1995) (statement of Rep. William F. Clinger, Jr.) (arguing that the Senate version of the moratorium was, "frankly, hard to characterize as a regulatory moratorium").
93. President William J. Clinton, Statement on Senate Action To Reject a Regulatory Moratorium, 1 PUB. PAPERS 416, 416 (Mar. 29, 1995) (asserting that a forty-five-day congressional review period-"not the blunt instrument of a moratorium"-was "the right way to reform regulation"). Consistent with this sense, federal and state bills and statutes calling for the extension or suspension of the effective dates of regulations to enable legislative review of regulations are not treated as regulatory moratoria for purposes of this Article.
94. For example, no one would argue that Congress has implemented a moratorium by providing that substantive rules shall not be effective until at least thirty days after the required publication of the rule has occurred. See Administrative Procedure Act § 4(c), 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 . . . .").
95. Congressional Review Act, 110 Stat. 868. The issue of congressional review of regulations came to the forefront again in the 112th Congress when Republicans proposed legislation that would halt all new major regulations until the regulations had been affirmatively approved by Congress-rather than simply giving Congress the chance to disapprove significant regulations, as the Congressional Review Act does. See Regulations from the Executive in Need of Scrutiny Act of 2011, H.R. 10, 112th Cong. § 801(b)(1) (2011) ("A major rule shall not take effect unless the Congress enacts a joint resolution of approval . . . ."). This bill passed the House in December 2011 and was sent to the Senate. See 157 CONG. REC. H8237 (daily ed. Dec. 7, 2011) (noting that 241 representatives voted in favor of the bill).
96. See, e.g., S. 219 (requiring a review period before a "significant rule" can take effect).
97. H.R. 450 (proposing a moratorium on federal rulemaking).
98. Stop Regulating Our Small Businesses Act of 1995, H.R. 839, 104th Cong. (1995) (proposing a moratorium on regulations related to small businesses).
99. See, e.g., H.R. Res. 1649, 111th Cong. (2010) (proposing an amendment to House rules to establish a House Committee on Regulatory Review and American Jobs that would (1) review all final and proposed federal regulations to determine whether such regulations would result in the loss of U.S. jobs, and (2) impose a moratorium on such regulations).
100. Midnight Rule Act, H.R. 34, 111th Cong. (2009) (proposing that midnight rules-defined as agency rules adopted within the final ninety days of the final term a president serves-"shall not take effect until 90 days after [a new] agency head [has been] appointed by the new President").
101. For a description of polls demonstrating rising concerns about overregulation and the economy, see infra notes 229-31 and accompanying text.
102. This number counts bills introduced in the House or in the Senate as unique bills- meaning that a bill introduced in the House and the same counterpart bill introduced in the Senate are counted as two different bills.
103. Regulation Audit Revive Economy Act of 2011, H.R. 213, 112th Cong. (2011).
104. Compare Regulatory Transition Act of 1995, S. 219, 104th Cong. (1995), with Regulatory Transition Act of 1995, H.R. 450, 104th Cong. (1995).
105. H.R. 3518, 112th Cong. (2011).
106. Jobs Through Growth Act, H.R. 3400, 112th Cong. (2011).
107. Long-Term Surface Transportation Extension Act of 2011, S. 1786, 112th Cong. tit. VI (2011).
108. Regulatory Time-Out Act of 2011, H.R. 3257, 112th Cong. (2011).
109. Jobs Through Growth Act, S. 1720, 112th Cong. (2011).
110. Job Creation and Regulatory Freeze Act of 2011, H.R. 3194, 112th Cong. (2011).
111. Stop the Regulation Invasion Please Act of 2011, H.R. 3181, 112th Cong. (2011).
112. H.R. Res. 402, 112th Cong. (2011).
113. Regulatory Time-Out Act of 2011, S. 1538, 112th Cong. (2011).
114. Regulation Moratorium and Jobs Preservation Act of 2011, H.R. 2898, 112th Cong. (2011).
115. Two-Year Regulatory Freeze Act of 2011, S. 1531, 112th Cong. (2011).
116. Regulation Moratorium and Jobs Preservation Act of 2011, S. 1438, 112th Cong. (2011).
117. Restoring Economic Certainty Act of 2011, H.R. 1281, 112th Cong. (2011).
118. Regulation Moratorium Act of 2011, H.R. 1235, 112th Cong. (2011).
119. H.R. 3181.
120. H.R. 2898.
121. See, e.g., H.R. 3518 § 1 (proposing a two-year moratorium).
122. S. 1786 § 603 (proposing a one-year moratorium).
123. H.R. 3257 § 3(2) (proposing a moratorium to last until January 21, 2013).
124. H.R. 3194 § 4(3) (proposing a moratorium with an end date of January 20, 2013).
125. H.R. 3181 § 6(3) (providing for a minimum of a two-year moratorium).
126. S. 1538 § 3 (proposing a oneyear "time-out" period for regulations).
127. S. 1531 § 2 (proposing a two-year freeze on new rules or regulations).
128. H.R. 1281 § 6(2) (proposing a moratorium that would last until the end of the "two-year period beginning on the date occurring 30 days after the date of the enactment of this Act").
129. H.R. 1235 § 2 (proposing a moratorium through January 31, 2013).
130. See, e.g., H.R. 3400 § 202(a) ("No agency may take any significant regulatory action, until the Bureau of Labor Statistics average of monthly unemployment rates for any quarter beginning after the date of enactment of this Act is equal to or less than 7.7 percent.").
131. S. 1720 § 3503(a) (same).
132. H.R. 2898 § 3(a) (same).
133. S. 1438 § 3(a) (same).
134. S. 1438.
135. S. 1538.
136. accord H.R. 3400 § 201(3).
137. S. 1720 § 3502(3).
138. H.R. 3194 § 4(2).
139. H.R. 2898 § 2(3)(A).
140. S. 1438 § 2(3).
141. H.R. 3518 § 1.
142. Regulation Moratorium Act of 2011, H.R. 1235, 112th Cong. § 2 (2011) (emphasis added).
143. H.R. 3518 is an example of a bill that fails to provide exemptions. It proposes a moratorium that apparently would cover all rules "that would affect employment levels"- without any specified exceptions. H.R. 3518 § 1.
144. H.R. 2898 § 4(a)(1)(A)-(B).
145. accord H.R. 3194 § 3 (providing for exemptions in cases of "an imminent threat to human health or safety, or any other emergency").
146. Stop the Regulation Invasion Please Act of 2011, H.R. 3181, 112th Cong. § 3(a)(2)(A) (2011) (providing for exemptions in emergencies as certified by the administrator of OIRA).
147. Regulation Audit Revive Economy Act of 2011, H.R. 213, 112th Cong. § 4(a) (2011) (establishing an "emergency exception").
148. see also H.R. Res. 402, 112th Cong. (2011) (exempting rules that "provide for emergency services or the defense of the Nation").
149. H.R. 3400 § 203 ("The President may waive the application of [the moratorium] to any significant regulatory action, if the President . . . determines that the waiver is necessary on the basis of national security or a national emergency . . . .").
150. H.R. 2898 § 4 (same).
151. S. 1438 § 4 (same).
152. H.R. 3194 § 3(a)(1)(B).
153. H.R. 2898 § 4(a)(1)(A)-(B).
154. H.R. 213 § 4(a).
155. accord H.R. 3181 § 3(a)(2)(B).
156. See H.R. 3194 § 3(a)(1)(C) (exempting regulations that have as their principal effect "fostering private sector job creation and the enhancement of the competitiveness of workers in the United States" or "encouraging economic growth").
157. cf. H.R. 2898 § 2(3)(A) (defining "significant regulatory action[s]" to which the moratorium applies as, inter alia, those actions that "adversely affect in a material way the economy, a sector of the economy, productivity, competition, [or] jobs").
158. E.g., Restoring Economic Certainty Act of 2011, H.R. 1281, 112th Cong. § 6(3)(B)(ii) (2011) (exempting regulations "that are limited to agency organization, management, or personnel matters").
159. See, e.g., H.R. 3181 § 3(c) (noting that the regulatory moratorium would not apply to rulemaking or rules that "establish or enforce any statutory rights against discrimination on the basis of age, race, religion, gender, national origin, or handicapped or disability status except such rulemaking actions or rules that establish, lead to, or otherwise rely on the use of a quota or preference based on [those characteristics]").
160. H.R. 213 § 4(c) (same).
161. See H.R. 3194 § 3(a)(1)(D) (exempting regulations that pertain "to a military or foreign affairs function").
162. H.R. 1281 § 6(3)(B)(i) (same).
163. H.R. 3194 § 3(a)(1)(E).
164. Regulatory Time-Out Act of 2011, S. 1538, 112th Cong. § 4(a)(1)(E) (2011).
165. See, e.g., H.R. 3518, 112th Cong. (2011).
166. Long-Term Surface Transportation Extension Act of 2011, S. 1786, 112th Cong. tit. VI (2011).
167. Regulatory Time-Out Act of 2011, H.R. 3257, 112th Cong. (2011).
168. H.R. 3194.
169. H.R. 3181.
170. Two-Year Regulatory Freeze Act of 2011, S. 1531, 112th Cong. (2011).
171. Regulatory Moratorium Act of 2011, H.R. 1235, 112th Cong. (2011).
172. Jobs Through Growth Act, H.R. 3400, 112th Cong. § 204(b) (2011).
173. Jobs Through Growth Act, S. 1720, 112th Cong. § 3505(b) (2011).
174. Regulation Moratorium and Jobs Preservation Act of 2011, S. 1438, 112th Cong. § 5 (2011).
175. H.R. 1281 § 7.
176. H.R. 213 § 7.
177. Exec. Order No. 2, N.Y. COMP. CODES R. & REGS. tit. 9, § 5.2 (1995).
178. see also GEORGE E. PATAKI, MESSAGE TO THE LEGISLATURE 14 (1995) (announcing to the legislature that he would sign an "Executive Order declaring a moratorium on all new regulations-except regulations needed to protect the public health and safety or rules that promote new jobs and economic activity").
179. Patricia E. Salkin, News from the States, ADMIN. & REG. L. NEWS, Spring 1995, at 8, 8 (noting that Governor Pataki ordered a moratorium on proposed rules and regulations via his second executive order).
180. Exec. Order No. 2, tit. 9, § 5.2.
181. see also Patricia Salkin, Regulatory Reform Continues To Dominate Political Agenda in New York, ADMIN. & REG. L. NEWS, Spring 1996, at 10, 10 ("When Governor George Pataki campaigned for office, he promised regulatory relief and reform to the businesses and local governments in the State.").
182. Jessica Ancker, Business Leaders Hail Pataki Order, BUFF. NEWS, Jan. 6, 1995, at A12.
183. See Exec. Order No. 7, N.Y. COMP. CODES R. & REGS. tit. 9, § 5.7 (1995) (extending "Executive Order No. 2 in full force and effect up to and including June 30, 1995").
184. Exec. Order No. 14, N.Y. COMP. CODES R. & REGS. tit. 9, § 5.14 (1995) (extending "Executive Order No. 2 in full force and effect up to and including Sept. 30, 1995").
185. see also Pataki Aims To Cut into Some Red Tape, TIMES UNION (Albany, N.Y.), Dec. 2, 1995, at B2 (noting in December 1995 that even though the Pataki administration's "moratorium on issuing new regulations" was over, agencies would face a "rigorous set of guidelines designed to discourage the creation of too much governmental red tape").
186. Michael Slackman, Pataki's Regulatory Revolution, NEWSDAY, Aug. 6, 1995, at A21 (noting that Governor Pataki's moratorium would "continue[] at least until the end of September").
187. Roy Yancey, State Shapes Rules To Weigh the Price of New Regulations, TIMES UNION (Albany, N.Y.), Aug. 14, 1995, at B2 ("Taking a page from the federal book, the Pataki administration is preparing how-to handbooks on cost-benefit analysis and risk assessments to be distributed next month to various state agencies.").
188. Exec. Order No. 95-3 (R.I. Jan. 25, 1995), available at http://www.uri.edu/library/special_collections/almond/execord/95-03.html.
189. see also Rhode Island Governor Inauguration, C-SPAN (Jan. 3, 1995), http://www.c-spanvideo.org/program/62525-1 (relaying Governor Almond's inaugural address on January 3, 1995).
190. Governor Bruce Sundlun Papers 1990-1995: Biographical Note, UNIV. OF R.I., http://www.uri.edu/library/special_collections/political_papers/sundlun/historical.html (noting that Governor Sundlun succeeded the Democrat Bruce Sundlun).
191. Exec. Order No. 95-3.
192. Exec. Order No. S-2-03 (Cal. Nov. 17, 2003), available at http://www.gov38.ca.gov/executive-order/3381.
193. History of California's Constitutional Officers, CAL. SEC'Y OF STATE DEBRA BOWEN, http://www.sos.ca.gov/admin/ca-roster/2010/pdf/01c-his_off.pdf (last visited Apr. 11, 2012).
194. Exec. Order No. S-2-03.
195. See Governor Janice K. Brewer's Accomplishments, OFFICE OF ARIZ. GOVERNOR JANICE K. BREWER, http://www.azgovernor.gov/About/Gov_Accomplishments.asp (last visited Apr. 11, 2012) (stating that Governor Brewer took office on January 21, 2009, and announced a regulatory moratorium the next day).
196. Janet Napolitano, WASH. POST, http://www.washingtonpost.com/politics/janet-napolitano/gIQAynPe9O_topic.html#path-to-power (last visited Apr. 11, 2012) (noting that Governor Brewer would succeed Democrat Janet Napolitano).
197. Memorandum from Janice K. Brewer, Governor, to State Agency Dirs. & Acting Dirs., 15 Ariz. Admin. Reg. 342, 342 (Jan. 30, 2009).
198. See infra notes 176-85 and accompanying text.
199. David M. Halbfinger & Ian Urbina, G.O.P. Wins Two Key Governors' Races.
200. Bloomberg Prevails in a Close Contest, N.Y. TIMES, Nov. 4, 2009, http://www.nytimes.com/2009/11/04/nyregion/04elect.html.
201. Exec. Order No. 1 (N.J. Jan. 20, 2010), available at http://www.nj.gov/infobank/circular/eocc1.pdf.
202. See New Jersey: Common Sense Drives Regulatory Reform-A Positive Influence Outside Our Own State, METROPOLITAN CORP. COUNS., Apr. 2011, at 17 (suggesting that "newly elected governors in Florida, Nevada, New Mexico and North Carolina have instituted rule freezes" inspired by New Jersey's own freeze (quoting Kim Gaudagno, Lieutenant Governor of New Jersey)).
203. Marc Lacey, New Mexico Governor Rushes To Undo the Agenda of Her Predecessor, N.Y. TIMES, Aug. 30, 2011, at A11.
204. Exec. Order No. 2011-001 para. 1 (N.M. Jan. 1, 2011), available at http://www.governor. state.nm.us/uploads/FileLinks/1e77a5621a1544e28318ba93fcd47d49/EO-2011-001.pdf.
205. See Kevin Miller, Gov.-Elect LePage Takes Oath Today, BANGOR DAILY NEWS (Me.), Jan. 5, 2011, at 1 (noting that the Republican Governor LePage would succeed Democrat John Baldacci on January 5, 2011).
206. Exec. Order No. 09 (Me. Jan. 10, 2011), available at http://www.maine.gov/tools/whatsnew/index.php?topic=Gov_Executive_Orders&id=182022&v=article2011.
207. Notably, Governor LePage's moratorium was immediately supplemented by an order issued by Maine's secretary of state, who chose to implement "an immediate moratorium on rulemaking within the bureaus overseen by his office" and a review of existing and pending rules.
208. Gov. Bill Haslam (R), NAT'L J., http://www.nationaljournal.com/almanac/person/billhaslam-us (last updated July 1, 2011).
209. Press Release, Governor Bill Haslam, Haslam Announces Freeze of New Rules and Regulations (Jan. 19, 2011), available at http://news.tennesseeanytime.org/node/6611.
210. One highprofile rule reportedly frozen by Governor Haslam's order was a Tennessee Department of Revenue rule change that allegedly would have impacted online retailer Amazon.com. See Brian Reisinger, Retailers Call Play for Amazon 'Unfair,' NASHVILLE BUS. J., Apr. 1, 2011, http://www.bizjournals.com/nashville/print-edition/2011/04/01/retailers-call-play-for-amazonunfair. html ("The Department of Revenue canceled [a] hearing on the rule change, citing Haslam's regulatory freeze as he came into office.").
211. Ryan Mills, On the Job: Rick Scott Sworn In as Florida's 45th Governor, Issues First Orders, NAPLES DAILY NEWS (Jan. 4, 2011, 12:25 PM), http://www.naplesnews.com/news/2011/jan/04/rick-scott-sworn-in-florida-governor-inauguration.
212. Exec. Order No. 11-01 (Fla. Jan. 4, 2011), available at http://www.flgov.com/wp-content/uploads/orders/2011/11-01-rulemaking.pdf, superseded by Exec. Order No. 11-72 (Fla. Apr. 8, 2011), available at http://www.flgov.com/wp-content/uploads/orders/2011/11-72-fiscal.pdf.
213. See Exec. Order No. 11-72 § 1 (requiring state agencies "to submit all proposed notices, along with the complete text of the proposed rule or amendment, to OFARR" and prohibiting agencies from publishing "any required notice without prior OFARR's approval"). The Florida Supreme Court, however, later refused to read Executive Order No. 11-72 as overriding the suspension of rulemaking in the state. See Whiley v. Scott, No. SC11-592, 2011 WL 3568804, at *10 (Fla. Aug. 16, 2011) (per curiam) ("We trust that any provision in Executive Order 11-72 suspending agency compliance with the [Administrative Procedure Act, FLA. STAT. ANN. ch. 120 (West 2008)], i.e., rulemaking, will not be enforced against an agency at this time . . . .").
214. See infra notes 187-96 and accompanying text.
215. See infra notes 176-85 and accompanying text.
216. See Exec. Order No. 1995-6 § 4 (Mich. Mar. 31, 1995), available at http://www.state.mi. us/migov/gov/ExecutiveOrders/1995/1995-6.html (ordering that agencies "shall process rules only when the rules are required by law, are necessary to interpret or enforce the law, are necessary to rescind or amend obsolete or superseded rules, or are necessary due to compelling public need").
217. Chris McGann, Gregoire Sworn In amid Legal Challenge, SEATTLE POSTINTELLIGENCER, Jan. 12, 2005, at A1.
218. Exec. Order No. 10-06 § 1 (Wash. Nov. 17, 2010), available at http://www.governor.wa.gov/execorders/eo_10-06.pdf.
219. Memorandum from Kari Burrell, Exec. Policy Dir., to Agency Dirs. (Nov. 16, 2010), available at http://www.governor.wa.gov/news/20101116_memo_eo_10-06.pdf (emphasis added).
220. Exec. Order No. 11-03, at 1 (Wash. Oct. 11, 2011), available at http://www.governor.wa .gov/execorders/eo_11-03.pdf.
221. Press Release, Governor Chris Gregoire, Gov. Gregoire Extends Rule Moratorium (Oct. 13, 2011), available at http://www.governor.wa.gov/news/news-view.asp?pressRelease=1784&newsType=1.
222. Ed Vogel, Sandoval Set To Take Office, LAS VEGAS REV.-J., Jan. 1, 2011, at 2B.
223. Exec. Order No. 2011-01 para. 1 (Nev. Jan. 3, 2011), available at http://ndep.nv.gov/docs_10/exec-order-2011-01.pdf.
224. See Exec. Order No. S-2-03 (Cal. Nov. 17, 2003), available at http://www.gov38.ca.gov/executive-order/3381 (ordering a 180-day regulatory freeze).
225. See Exec. Order No. 2011-001 para. 1 (N.M. Jan. 1, 2011), available at http://www. governor.state.nm.us/uploads/FileLinks/1e77a5621a1544e28318ba93fcd47d49/EO-2011-001.pdf (ordering a ninety-day regulatory freeze).
226. See Ed Vogel, New Rules Don't Violate Sandoval Order, LAS VEGAS REV.-J., Dec. 12, 2011, at 3B ("Sandoval made it clear the regulation freeze was meant strictly for regulations affecting business and that he wanted to help, not hurt, businesses.").
227. see also OFFICE OF THE ADMIN. RULES COORDINATOR, THE IDAHO RULE WRITER'S MANUAL 13 (2010), available at http://adminrules.idaho.gov/rulemaking_templates/rule_draftmanual.pdf.
228. Memorandum from Janice K. Brewer, Governor, to State Agency Dirs. & Acting Dirs. (Apr. 30, 2009), available at http://azgovernor.gov/dms/upload/NR_043009_RegReviewDirective.pdf.
229. see also Jeremy Duda, Gov. Brewer Extends Suspension of Agency Rulemaking, ARIZ. CAP. TIMES, May 1, 2009, http://azcapitoltimes.com/news/2009/05/01/brewer-extends-suspension-of-agency-rulemaking ("[Brewer] ordered a two-month extension of the ban on April 30. The new order keeps the suspension in effect until June 30. . . .").
230. See Memorandum from Janice K. Brewer, Governor, to State Agency Dirs. & Acting Dirs. (June 29, 2009), available at http://www.azsos.gov/public_services/Register/SDOC4287Continuation02.pdf (extending the moratorium through October 16, 2009).
231. Memorandum from Janice K. Brewer, Governor, to State Agency Dirs. & Acting Dirs. (Oct. 16, 2009), available at http://www.id.state.az.us/publications/Gov_Regulatory_Review_Plan_Oct_16_2009.pdf (extending the moratorium through November 24, 2009).
232. See Act of Sept. 4, 2009, ch. 7, § 28(A), 2009 Ariz. Sess. Laws 1874, 1905 (imposing a regulatory moratorium through the 2009-2010 fiscal year).
233. ARIZONA OPENBOOKS, http://openbooks.az.gov/app/transparency/index.html (last visited Apr. 11, 2012) ("The State of Arizona government operates on a fiscal year that begins on July 1 and ends on the following June 30.").
234. Act of May 10, 2010, ch. 287, sec. 18, § 28(A), 2010 Ariz. Sess. Laws 1804, 1829-30. A gap in coverage existed between the two bills, with the original legislative moratorium set to expire at the end of June 2010, and the second legislative moratorium not set to kick in until July 29, 2010. Exec. Order No. 2010-13 (Ariz. June 30, 2010), available at http://azgovernor.gov/dms/upload/EO_2010-13.pdf.
235. Mary Jo Pitzl, Freeze on New Laws, Rules Sought, ARIZ. REPUBLIC, Feb. 6, 2009, at 1.
236. Act of May 10, 2010, sec. 18, § 28(A), 2010 Ariz. Sess. Laws at 1829-30.
237. Exec. Order No. 2011-05 (Ariz. June 30, 2011), available at http://www.azdhs.gov/diro/admin_rules/documents/Governor-Executive-Order_2011-05.pdf.
238. Press Release, Office of Governor Bev Perdue, Perdue Inaugurated as 73rd Governor, Pledges Strong, Hands-on Leadership in Tough Times (Jan. 10, 2009), available at http://www. governor.state.nc.us/newsItems/PressReleaseDetail.aspx?newsItemID=13.
239. Exec. Order No. 2011-001 § 2(1)(a) (N.C. Oct. 21, 2010), available at http://www. governor.state.nc.us/NewsItems/UploadedFiles/88069e35-fa4c-4d03-b785-6455d7dc8880.pdf.
240. Press Release, Office of Governor Bev Perdue, Governor Stops New Rulemaking Unless Absolutely Necessary (Oct. 21, 2010), available at http://www.governor.nc.gov/News Items/PressReleaseDetail.aspx?newsItemID=1524.
241. Act of Mar. 25, 2011, Sess. L. No. 2011-13, 2011 N.C. ALS 13 (LEXIS).
242. David N. Bass, GOP Clashes with Perdue over Regulatory Reform Agenda, CAROLINA J. ONLINE (Feb. 8, 2011), http://www.carolinajournal.com/exclusives/display_exclusive.html?id=7378.
243. Lynn Bonner & Rob Christensen, Senators Call for Freeze of Rule Making, NEWS & OBSERVER (Raleigh, N.C.), Feb. 9, 2011, at B3.
244. Act of July 25, 2011, Sess. Law No. 2011-398, § 61.2, 2011 N.C. ALS 398 (LEXIS).
245. Although 2011 seems to have been a particularly busy year for moratoria proposals, state legislatures have considered such proposals in prior years as well.
246. see also JAMES W. WRIGHT, 1993 REPORT OF THE SENATE CHAIRMAN OF THE ADMINISTRATIVE REGULATIONS REVIEW COMMISSION 23-24 (1993) (noting that S. 3659, the Regulatory Relief Act of 1993, passed the senate in New York).
247. See S. 390, Gen. Assemb., Jan. Sess. (Conn. 2011) (proposing "[t]o establish a two-year moratorium on new state regulations").
248. See S. Res. 27, 96th Leg., Reg. Sess. (Mich. 2011) (urging the president "to impose a moratorium on any new regulations").
249. See S.B. 812, 76th Legis. Assemb., Reg. Sess. (Ore. 2011) (proposing a rule moratorium).
250. S.B. 712, 76th Legis. Assemb., Reg. Sess. (Ore. 2011) (same).
251. See H.R. 1156, 62d Leg., Reg. Sess. § 2 (Wash. 2011) (proposing to suspend agency rulemaking until the "later of July 1, 2014, or such time as the economic and revenue forecast council reports for three consecutive quarters that state revenue collections have increased above the official forecast").
252. Quality Control Procedure for Agency Rules Act, S.B. 517, 80th Leg., 1st Reg. Sess. (W. Va. 2011) (proposing a "five-year moratorium on the adoption of new agency rules and modification of existing rules" but excepting "new emergency rules or modifications or new rules or modifications required by federal or state law").
253. S. Res. 27, 96th Leg., Reg. Sess. (Mich. 2011).
254. Press Release, Senate Republican Office, Republicans Call for Moratorium on Agency Rulemaking (Jan. 20, 2011), available at http://www.leg.state.or.us/press_releases/sro_012011 .pdf.
255. see also Michelle Cole, GOP Seeks Two-Year Halt to New State Agency Rules, OREGONIAN, Jan. 21, 2011, available at NewsBank, Doc No. MERLIN_16457724 (describing Oregon Republicans' demand for a regulatory moratorium).
256. See Johanna Maurice, The Future Belongs to the Nimble, CHARLESTON GAZETTE (W. Va.), July 9, 2011, at 5A (noting "[w]eird things" happening in other states, such as how "[i]n Florida, Nevada, New Mexico and Tennessee, new Republican governors [had] issued executive orders putting freezes on new state regulations").
257. See Exec. Order No. 10-06, at 1 (Wash. Nov. 17, 2010), available at http://www. governor.wa.gov/execorders/eo_10-06.pdf ("[W]e are called upon in these unprecedented economic times to both conserve resources and continue to meet our responsibilities . . . .").
258. Exec. Order No. 2011-01, at 1 (Nev. Jan. 3, 2011), available at http://ndep.nv.gov/docs_10/exec-order-2011-01.pdf.
259. Susan Collins, Opinion, The Economy Needs a Regulation Time-Out, WALL ST. J., Sept. 26, 2011, at A15.
260. cf. DEP'T OF ECOLOGY, STATE OF WASH., RULEMAKING SUSPENSION UPDATE 1, 3 (2010), available at http://www.ecy.wa.gov/laws-rules/docs/decision_list.pdf (noting that a rulemaking involving outdoor burning could be delayed until 2012 under Washington's rulemaking suspension but acknowledging that waiting until 2012 would "delay improvements in rule clarity and streamlining that benefit those businesses and residents who may be subject to the regulations").
261. Cf. SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) ("[T]he choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.").
262. See, e.g., Two-Year Regulatory Freeze Act of 2011, S. 1531, 112th Cong. (2011) (proposing a two-year regulatory freeze but exempting from the freeze all regulations that are exempted from the notice requirements of section 4(a) of the Administrative Procedure Act (APA), 5 U.S.C. § 553(b) (2006)).
263. See, e.g., APA § 4(a), 5 U.S.C. § 553(b) (exempting "interpretative rules, general statements of policy, or rules of agency organization, procedure or practice" from notice-andcomment requirements under the federal APA).
264. See Michael A. Livermore, Reviving Environmental Protection: Preference-Directed Regulation and Regulatory Ossification, 25 VA. ENVTL. L.J. 311, 338 (2007) (noting that "guidance documents, case-by-case administrative adjudication, or other informal mechanisms . . . lack the transparency or democratic legitimacy of the rulemaking process").
265. Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467, 546 (2002) (describing how "[m]aking policy through adjudication can lead to inconsistent outcomes and frustrates expectations when policy changes retroactively").
266. cf. APA § 4(a), 5 U.S.C. § 553(b)(3)(A) (exempting these alternative policy instruments from the requirements of notice-and-comment rulemaking).
267. see also Corporate Executives Surveyed Say Government Regulations Top Concern, 24 SEC. REG. & L. REP. 207, 208 (1992) (reporting that in a survey of 653 corporate executives during the second half of 1991, government regulation was identified as the top concern for more than 50 percent of all chief executive officers).
268. Dennis Jacobe, Gov't Regulations at Top of Small-Business Owners' Problem List, GALLUP (Oct. 24, 2011), http://www.gallup.com/poll/150287/gov-regulations-top-small-businessowners-problem-list.aspx.
269. Frank Newport, Despite Negativity, Americans Mixed on Ideal Role of Gov't, GALLUP (Sept. 28, 2011), http://www.gallup.com/poll/149741/despite-negativity-americans-mixed-idealrole-gov.aspx.
270. Regulatory Time-Out Act of 2011, H.R. 3257, 112th Cong. (2011).
271. Press Release, U.S. Rep. Richard Hanna, Hanna Introduces Legislation To Put a Time-Out on Regulations (Nov. 3, 2011), available at http://hanna.house.gov/index.php?option=com_content&view=article&id=3157:hanna-introduces-legislation-to-put-a-time-out-on-regulations&catid=49:press&Itemid=300066.
272. Regulatory Time-Out Act of 2011, S. 1538, 112th Cong. (2011).
273. The Kudlow Report (CNBC television program Sept. 26, 2011), available at http://video.cnbc.com/gallery/?video=3000047845.
274. Letter from Polly Zehm, Deputy Dir., Dep't of Ecology, State of Wash., to Ecology Stakeholders (Nov. 17, 2010), available at http://www.ecy.wa.gov/laws-rules/docs/zehmletter_ 111710.html.
275. See Whiley v. Scott, No. SC11-592, 2011 WL 3568804, at *1 (Fla. Aug. 16, 2011) (per curiam) (addressing the legality of the Florida governor's decision to suspend rulemaking in the state).
276. Robert V. Percival, Who's in Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?, 79 FORDHAM L. REV. 2487, 2487 (2011).
277. see also Kevin M. Stack, The Statutory President, 90 IOWA L. REV. 539, 550-52 (2005) (discussing presidential directive authority).
278. See, e.g., Whiley, 2011 WL 3568804, at *5 (noting that in Florida, the "Legislature has delegated specific responsibility to agency heads, such as the authority to determine whether to go forward with proposing, amending, repealing or adopting rules").
279. see also New Energy Econ., Inc. v. Martinez, 247 P.3d 286, 291 (N.M. 2011) (concluding that the state legislature had delegated duties to state agencies independent of the governor).
280. A legislatively imposed hard moratorium, of course, would not raise similar separationof-powers concerns because the legislature itself would be suspending rulemaking activity that it had created in the first instance.
281. Cf. Carl T. Bogus, The Battle for Separation of Powers in Rhode Island, 56 ADMIN. L. REV. 77, 80 (2004) (noting that the states differ as to how they approach separation-of-powers issues and "as to what extent they seek equipoise among the branches").
282. See Exec. Order No. 12,291 §§ 6-7, 3 C.F.R. 127, 131-33 (1982) (granting broad review powers to a task force within OMB).
283. See, e.g., Frank B. Cross, Executive Orders 12,291 and 12,498: A Test Case in Presidential Control of Executive Agencies, 4 J.L. & POL. 483 (1988) (discussing "the constitutional controversies surrounding Executive Order 12,291 and the promise of similar disputes over Executive Order 12,498" but concluding that "[w]hatever one's opinion of the policy prescriptions contained in President Reagan's executive orders, the actions taken therein fall squarely within the president's constitutional authority").
284. Colin S. Diver, Commentary, Presidential Powers, 36 AM. U. L. REV. 519, 526-27 (1987) ("[N]umerous critics have charged that, as actually implemented, the executive orders constitute a distortion of the President's supervisory role.").
285. Morton Rosenberg, Presidential Control of Agency Rulemaking: An Analysis of Constitutional Issues That May Be Raised by Executive Order 12,291, 23 ARIZ. L. REV. 1199 (1981) ("[T]he question . . . is whether the President in promulgating Executive order 12,291 has engaged in an exercise of Executive lawmaking without either constitutional or statutory authority and thereby violated the separation of powers doctrine.").
286. Peter M. Shane, Presidential Regulatory Oversight and the Separation of Powers: The Constitutionality of Executive Order No. 12,291, 23 ARIZ. L. REV. 1235 (1981) (exploring "the [fundamental] threshold question of the order's facial legality").
287. U.S. CONST. art. II, § 1.
288. Kevin M. Stack, The President's Statutory Powers To Administer the Laws, 106 COLUM. L. REV. 263, 267 (2006).
289. Exec. Order No. 12,291, 3 C.F.R. 127 (1982).
290. Cf. Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 DUKE L.J. 963, 966 (2001) ("[A]lthough the president's ability to remove agency heads gives him enormous power to influence their decisions, it does not give him the authority to dictate substantive decisions entrusted to them by law.").
291. Whiley v. Scott, No. SC11-592, 2011 WL 3568804 (Fla. Aug. 16, 2011) (per curiam).
292. Exec. Order No. 11-01 (Fla. Jan. 4, 2011), http://www.flgov.com/wp-content/uploads/orders/2011/11-01-rulemaking.pdf, superseded by Exec. Order No. 11-72 (Fla. Apr. 8, 2011), available at http://www.flgov.com/wp-content/uploads/orders/2011/11-72-fiscal.pdf.
293. Exec. Order No. 11-72 (Fla. Apr. 8, 2011), available at http://www.flgov.com/wpcontent/uploads/orders/2011/11-72-fiscal.pdf.
294. Whiley, 2011 WL 3568804, at *2 n.4.
295. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001) (noting that the Constitution permits no delegation of Congress's legislative powers).
296. Freedom of Information Act, 5 U.S.C. § 552 (2006 & Supp. IV 2010).
297. Department of Health and State Board of Health Rule Making Activities, WASH. STATE DEP'T OF HEALTH, http://www.doh.wa.gov/Rules/pdf/EO1103_Moratorium_rulemaking_masterlist.pdf (last updated Oct. 14, 2011) (same).
298. Temporary Rule-Making Suspension, DEP'T OF REVENUE, WASH. STATE (Jan. 5, 2011), http://dor.wa.gov/Content/FindALawOrRule/RuleMaking/tempSuspension.aspx (same).
299. Cellco P'ship v. FCC, 357 F.3d 88, 96 (D.C. Cir. 2004).
300. Jim Camden, Order Puts Moratorium on Nonessential Rules: Stability for Businesses Expected To Help State, SPOKESMAN-REV. (Spokane, Wash.), Nov. 18, 2010, at 7A (expressing the business community's concern that "[t]he potential exemptions are so broad that no one can be sure" and that "'[i]t's practically impossible to figure out what the executive order will apply to and what it won't apply to'" (quoting Eric de Place of Sightline Institute, a sustainable-energy organization)).
301. John M. Broder & Kelly Owen, Clinton Assails GOP Regulatory Proposal, L.A. TIMES, Feb. 22, 1995, at A16 (quoting President Clinton) (internal quotation mark omitted). Cass Sunstein also has noted the "blunderbuss" nature of the moratorium proposed in 1995.
302. See Cass R. Sunstein, Foreword: Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247, 273 (1996) ("[A] general moratorium on federal regulation is reactionary in the worst way-a crude, lazy, and pandering response to current problems. Its blunderbuss quality ensures that it will stop measures that are otherwise required by law, or that would do a lot of good, as well as measures that warrant reconsideration (which a moratorium by itself fails to provide).").
303. S. REP. NO. 104-15, at 26 (1995).
304. See, e.g., Exec. Order No. 2011-001, at 1 (N.M. Jan. 1, 2011), available at http://www. governor.state.nm.us/uploads/FileLinks/1e77a5621a1544e28318ba93fcd47d49/EO-2011-001.pdf ("[S]uch an effort is timely given current unemployment levels and state budget difficulties, in order to create economic opportunity for each and every New Mexican, while protecting and preserving the health, safety and welfare of our community.").
305. See Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 YALE L.J. 2, 35 (2009) (describing the rise in the political-control model).
306. see also Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives, 78 N.Y.U. L. REV. 557, 580 (2003) ("[T]he dominant version of the principalagent approach to the democratic legitimacy of administrative agencies is now the presidential control model.").
307. cf. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (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 . . . .").
308. Nina A. Mendelson, Quick off the Mark? In Favor of Empowering the President-Elect, 103 NW. U. L. REV. COLLOQUY 464, 468-72 (2009), http://www.law.northwestern.edu/lawreview/colloquy/2009/19/LRColl2009n19Mendelson.pdf (exploring the possibility of statutory amendments that would increase a president-elect's power).
309. See Ari Cuenin, Note, Mooting the Night Away: Postinauguration Midnight-Rule Changes and Vacatur for Mootness, 60 DUKE L.J. 453, 478 (2010) ("[T]hese suspension and withdrawal memoranda are frequently suggested to new presidents as one of the most effective means for handling midnight regulations.").
310. At the state level, the answer could be different depending on each state's own constitutional and statutory requirements.
311. The president's appointment powers are spelled out in the Constitution in the Appointments Clause. See U.S. CONST. art. II, § 2, cl. 2 ("[The President] shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for . . . .").
312. See Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4435, 4435 (Jan. 26, 2009) ("requesting" that agencies take the steps outlined in the memorandum).
313. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring) ("[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President by § 1 of Art. II.").
314. See William A. Eskridge, Jr., Sodomy and Guns: Tradition as Democratic Deliberation and Constitutional Interpretation, 32 HARV. J.L. & PUB. POL'Y 193, 203-09 (2008) (discussing the notion of "constitutional adverse possession" and its pitfalls).
315. INS v. Chadha, 462 U.S. 919 (1983).
316. See Memorandum for the Heads and Acting Heads of Agencies Described in Section 1(d) of Executive Order 12291, 58 Fed. Reg. 6074, 6074 (Jan. 25, 1993) ("[Agency heads] are requested to withdraw from the Federal Register for approval [by an agency head appointed by President Clinton] . . . all regulations that have not yet been published in the Federal Register . . . .").
317. See Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702, 7702 (Jan. 24, 2001) ("With respect to regulations that have been sent to the [Office of the Federal Register (OFR)] but not published in the Federal Register, withdraw them from OFR for review and approval [by an agency head appointed by President Bush] . . . .").
318. See Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4435, 4435 (Jan. 26, 2009) ("Withdraw from the OFR all proposed or final regulations that have not been published in the Federal Register so that they can be reviewed and approved by a department or agency head [appointed by President Obama] . . . .").
319. See Exec. Order. No. 1 para. 2 (N.J. Jan. 20, 2010), available at http://www.nj.gov/info bank/circular/eocc1.pdf ("With respect to any proposed administrative regulation or rule that may have been transmitted to the Office of Administrative Law, but has not been published in the New Jersey Register, the head of the State agency proposing the regulation or rule shall withdraw the proposed regulation or rule in a manner consistent with the Rules for Agency Rulemaking and procedures of the Office of Administrative Law.").
320. The withdrawal involved an unpublished proposed rule-as opposed to a final rule- that seemed to be legally permissible. See A Rush To Regulate-The Congressional Review Act and Recent Federal Regulations: Hearing Before the Subcomm. on Energy Policy, Natural Res. & Regulatory Affairs of the H. Comm. on Gov't Reform, 107th Cong. 121-22 (2001) (prepared statement of Thomas O. McGarity, W. James Kronzer Chair, University of Texas School of Law) (noting that the withdrawal of unpublished proposed rules at the beginning of the Bush administration was likely legal because most rulemakings are not commenced until notice is actually published in accordance with section 4 of the APA, 5 U.S.C. § 553 (2000)).
321. Kennecott Utah Copper Corp. v. Dep't of the Interior, 88 F.3d 1191, 1206 (D.C. Cir. 1996).
322. 1 C.F.R. § 18.13 (2011) ("A document that has been filed for public inspection with the Office of the Federal Register but not yet published, may be withdrawn from publication or corrected by the submitting agency.").
323. See Xin-Chang v. Slattery, 859 F. Supp. 708, 712 2011 ("[W]here a rule confers a substantive benefit to a person, an agency must comply with it, even if the rule is not published."), rev'd sub nom. Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995).
324. See Zhang v. Slattery, 55 F.3d 732, 749 (2d Cir. 1995) (noting that the effective date of the rule was timed to publication), superseded on other grounds by statute, Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (codified at 8 U.S.C. § 1101 (a)(42) (2006)).
325. New Energy Econ., Inc. v. Martinez, 247 P.3d 286 (N.M. 2011).
326. Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702, 7702 (Jan. 24, 2001) (asking agency heads, "[w]ith respect to regulations that have been published in the OFR but have not taken effect, temporarily [to] postpone the effective date of the regulations for 60 days").
327. Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559, 701-706 (2006).
328. See, e.g., Natural Res. Def. Council, Inc. v. EPA, 683 F.2d 752, 761 (3d Cir. 1982) ("We conclude that, under the facts of this case, EPA's action in indefinitely postponing the effective date of the amendments fit the definition of 'rule' in the APA, and, as such, was subject to the APA's rulemaking requirements.").
329. Council of S. Mountains v. Donovan, 653 F.2d 573, 580-82 (D.C. Cir. 1981) (discussing how deferring the implementation of regulations generally requires notice-and-comment procedures).
330. see also JEFFREY S. LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING 119-20 (4th ed. 2006) ("[R]egardless of the duration of a postponement, a delay of a rule's effective date is normally considered a 'rule' within the meaning of the APA so as to require notice-and-comment rulemaking.").
331. See APA § 4(a), 5 U.S.C. § 553(b)(3) (exempting procedural rules and rules for which there is "good cause," such as impracticability).
332. Because states have their own administrative-procedure acts, the analysis at the state level could differ depending on the state and its requirements.
333. See Memorandum for the Heads and Acting Heads of Agencies Described in Section 1(d) of Executive Order 12291, 58 Fed. Reg. 6074, 6074 (Jan. 25, 1993).
334. Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702, 7702 (Jan. 24, 2001) (same).
335. Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4435, 4435-36 (Jan. 26, 2009).
336. Memorandum from Peter R. Orszag, Dir., Office of Mgmt. & Budget, Exec. Office of the President, to the Heads & Acting Heads of Exec. Dep'ts & Agencies (Jan. 21, 2009), available at http://www.whitehouse.gov/sites/default/files/omb/assets/agencyinformation_memoranda_2009_pdf/m09-08.pdf (emphasis added).
337. Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702 (Jan. 24, 2001).
338. Gale Lea Rubrecht, President Obama Halts Midnight Regulations, 24 NAT. RESOURCES & ENV'T 47, 49 (2009).
339. Anna Oberthur, Order May Delay Water-Saving Clothes Washer Law, ASSOCIATED PRESS, Dec. 14, 2003, available at http://www.sdcwa.org/clips/2003/dec/121403/121403ordermay delay.html.
340. See, e.g., Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4435, 4435 (Jan. 26, 2009) (ordering agencies to refrain from sending any proposed or final regulations to the Federal Register unless they have been approved by an appointee of President Obama).
341. Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702, 7702 (Jan. 24, 2001) (ordering agencies to send no proposed or final regulations to the Federal Register unless they have been approved by an appointee of President Bush).
342. Memorandum for the Heads and Acting Heads of Agencies Described in Section 1(d) of Executive Order 12291, 58 Fed. Reg. 6074, 6074 (Jan. 25, 1993) (directing that no proposed or final regulations should be sent to the Federal Register for publication unless they have been approved by an appointee of President Clinton).
343. Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702, 7702 (Jan. 24, 2001).
344. See Exec. Order No. 1 para. 1 (N.J. Jan. 20, 2010), available at http://www.nj.gov/info bank/circular/eocc1.pdf (ordering a ninety-day freeze).
345. Exec. Order No. 95-3 para. 1 (R.I. Jan. 25, 1995), available at http://www.uri.edu/library/special_collections/almond/execord/95-03.html (same).
346. Exec. Order No. 2011-001, at 1 (N.M. Jan. 1, 2011), available at http://www. governor.state.nm.us/uploads/FileLinks/1e77a5621a1544e28318ba93fcd47d49/EO-2011-001.pdf (determining that "ninety days is a reasonable time to review such proposed and pending rules and regulations, to examine them from various perspectives as to their workability, reasonableness, and determine whether they are proper and necessary").
347. If the legislation were to work at the federal level, the idea could be copied at the state level, perhaps with the assistance of a model state act.
348. JASON A. SCHWARTZ, INST. FOR POLICY INTEGRITY, 52 EXPERIMENTS WITH REGULATORY REVIEW: THE POLITICAL AND ECONOMIC INPUTS INTO STATE RULEMAKINGS 159 (2010), available at http://policyintegrity.org/files/publications/52_Experiments_with_ Regulatory_Review.pdf.
349. See, e.g., Barbara L. Borden, Legislative Review of Agency Rules in Arizona: A Constitutional Analysis, 1985 ARIZ. ST. L.J. 493 ("This comment analyzes Arizona's existing legislative review procedure and a recent proposal for legislative oversight.").
350. Jonathan Rose, Executive Oversight of Rulemaking in Arizona: The Governor's Regulatory Review Council- The First Three Years, 1985 ARIZ. ST. L.J. 425 ("Th[is] article will describe the establishment, operation, and effect of the [Governor's Regulatory Review Council] during its first three years . . . .").
351. Brian J. Gerber, Cherie Maestas & Nelson C. Dometrius, State Legislative Influence over Agency Rulemaking: The Utility of Ex Ante Review, 5 ST. POL. & POL'Y Q. 24 (2005) (studying legislative review of agency rule proposals "[u]sing data from a 1994 survey of top agency administrators in the 50 states").
352. Westlaw does offer a state executive-order database. It is labeled "Netscan Executive Orders" on Westlaw and can be found using "NS-EO" as the database identifier. According to Westlaw, the database, which is produced from electronic data transmissions provided by NETSCAN, does not begin coverage until 2008, and the database proved difficult to use effectively.