Midnight Regulations Traced Back To Early Error In Judicial Rulings

George W. Bush is following in the noble footsteps of John Adams. From the Washington Post:

"In a burst of activity meant to leave a lasting stamp on the federal government, the Bush White House in the past month has approved 61 new regulations on environmental, security, social and commercial matters that by its own estimate will have an economic impact exceeding $1.9 billion annually.

Some of the rules benefit key industries that have long had the administration's ear, such as oil and gas companies, banks and farms. Others impose counterterrorism security requirements on importers and private aircraft owners.

The rules cover obscure as well as high-profile social and economic issues: spelling out what kinds of records must be kept by sexually explicit performers and publications, exempting hobbyists' rocket motors from federal explosives controls, expanding the collection of DNA samples from federal prisoners.

In most cases, the new regulations are meant to spell out precisely how federal employees and private citizens must comply with laws passed by Congress. But the language in those laws often had ambiguities -- reflecting lawmakers' uncertainties or disagreements -- that gave Bush's appointees broad discretion to follow their policy preferences. Similar "midnight regulations" were approved by previous presidents."

From my perspective, this is not a happy precedent. You can read about the laws in the post. I'm sure they will be hailed by some as free market, but they're really favors to donors and special interests, whatever their pedigree in political economy.

"The Bush administration's impetus for hurrying to approve and publish so many of these regulations in the Federal Register is that those deemed to have a major economic impact -- defined by the Office of Management and Budget (OMB) as more than $100 million a year -- take legal effect after 60 days.

That means Nov. 21 was an important political deadline to ensure they become effective before President-elect Barack Obama's Jan. 20 inauguration. Less significant regulations, including many still in final stages of preparation, can take effect in 30 days or less.

Once the new rules take the form of law, Democrats can undo them only by three complicated means: through a new regulatory rulemaking that would probably take years; through congressional amendments to underlying laws; or through special, fast-track resolutions of disapproval approved by the House and Senate within a few months after the start of the new congressional session on Jan. 6."

What to do? Is there any precedent on this?

"Such a quick congressional rebuke has occurred only once before, in 2001, when a Republican-controlled Congress with President Bush's backing blocked a workplace safety regulation completed in the Clinton administration's final months. But recently, spokesmen for Senate Majority Leader Harry M. Reid (Nev.) and House Speaker Nancy Pelosi (Calif.) said Democrats were prepared to use that regulatory reversal power in consultation with Obama."

The power of precedent. It can come to be used against you.

"Based on the flurry of quiet directives coming from the White House as the end of the term nears, it looks like the Bush goose (or is it turducken?) isn't quite cooked yet.

In what has become a kind of presidential right-of-passage, the president (or really, the federal agencies that answer to him) has been pushing through a series of last-minute regulations that have the force of law. Everything from pollution controls to family-leave standards can be set by these rules.

And you thought your high school government teacher said that Congress made all the laws.

These de-facto laws are called "midnight rules" or "midnight regulations" because they happen at the end -- or midnight period -- of an administration. If the rules are published in the Federal Register by Friday, Nov. 21, they'll be very hard for President-elect Obama to reverse when he gets into office.

And that's the point. Sure, the administration had eight years to get a lot of this stuff accomplished. But according to senior research fellow at George Mason University, Veronique de Rugy, most midnight regulations "cater to special interests" and "that is why they are hurried into effect without the usual checks and balances."

George Bush isn't the first president to push through rules before the next guy can get in. Jimmy Carter gets that award. In fact, the New Yorker's Elizabeth Kolbert says Carter's whirlwind of last-minute activity before Ronald Reagan took office is when the practice got named. "They became known as 'midnight regulations,' after the 'midnight judges' appointed by John Adams in the final hours of his presidency."

George Bush doesn't get the award for the most rules shoved through after the two-minute warning either. That goes to Bill Clinton who, according to de Rugy, set the record for number of last-minute pages published in the Federal Register at "more than 26,000."

The Midnight Regulations have come to occasion quite a party.

"Midnight Judges refers to the judicial appointments made by President John Adams just before he was succeeded by President Thomas Jefferson. Adams saw the appointments as a way to preserve Federalist influence in the federal government during the Jeffersonian tenure. Congress, dominated in the next session by Jeffersonians, reconstructed the inferior courts and legislated most of the midnight judges out of their commissions. In the case of a justice of the peace for the District of Columbia, the delivery of his commission was refused. This act led to the famous Supreme Court case of Marbury V.Madison."

A little more detail.

"But one appointment of a midnight judge had gone largely unnoticed, and it proved to be one of the most important appointments in U.S. history. This was the nomination of John Marshall as chief justice of the Supreme Court. Marshall, who was an ardent Federalist, viewed President Jefferson as nothing less than an "absolute terrorist."

In 1803, when the Court reconvened, it ruled on a case that arose from Adams's District of Columbia appointments. Prevented from receiving his commission as a justice of the peace, William Marbury asked the Court to order that his commission be honored.

The Court's landmark opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), settled the immediate dispute and partially answered the constitutional question at stake. Writing for the unanimous Court, Chief Justice Marshall dismissed Marbury's suit on the grounds that the Supreme Court lacked jurisdiction. Marshall wanted to avoid an impasse between the judiciary and the White House. However, Marshall's opinion also greatly expanded the power of the Court by holding that the judiciary has the power to say what the law is, and, if necessary, to overturn acts of Congress that it finds unconstitutional. The Court did this in Marbury for the first time in history, striking down a section of the Judiciary Act of 1789.

The problem of the midnight judges was settled, but with unexpected results. The judges appointed by Adams could not take office, and in this way the Federalists were thwarted. Yet in an indirect way, they triumphed. Marshall would serve on the Supreme Court for the next thirty-four years and in the process become perhaps the greatest chief justice in history. Moreover, with his opinion in Marbury v. Madison, the Court established its power of judicial review, a principal goal of the Federalists."

So, there you have it. One of the most ignominious and unfortunate acts in our history. Fine, I understand that most everyone considers Marbury a blessing and a linchpin of our system of government. For all I know, it is.

But I identify with the Jeffersonians, and consider the appointments an abomination, and the Marbury decision was clearly incorrectly decided. It offends my sense of justice to this day.

So don't blame me for these Midnight Regulations.