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47–033 PDF 2009

MIDNIGHT RULEMAKING: SHEDDING SOME LIGHT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

FEBRUARY 4, 2009 

Serial No. 111–2 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

STEVE COHEN, Tennessee, Chairman 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

BRAD SHERMAN, California 

DANIEL MAFFEI, New York 

ZOE LOFGREN, California 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

JOHN CONYERS, JR., Michigan 

TRENT FRANKS, Arizona 

JIM JORDAN, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

HOWARD COBLE, North Carolina 

STEVE KING, Iowa 

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III) 

C O N T E N T S 

FEBRUARY 4, 2009 

Page 

OPENING STATEMENTS 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................................................... 1 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on Commercial and Administrative Law .................................................................................................. 18 

WITNESSES 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York 

Oral Testimony ..................................................................................................... 22 

Prepared Statement ............................................................................................. 24 

Mr. Robert F. Kennedy, Jr., Chairman, Waterkeeper Alliance 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 30 

Dr. Gary D. Bass, Ph.D., Executive Director, OMB Watch 

Oral Testimony ..................................................................................................... 177 

Prepared Statement ............................................................................................. 179 

Ms. Lynn Rhinehart, Associate General Counsel, AFL-CIO 

Oral Testimony ..................................................................................................... 198 

Prepared Statement ............................................................................................. 200 

Dr. Veronique de Rugy, Ph.D., Senior Research Fellow, Mercatus Center 

at George Mason University 

Oral Testimony ..................................................................................................... 209 

Prepared Statement ............................................................................................. 211 

Mr. Michael Abramowicz, Professor, George Washington University Law 

School 

Oral Testimony ..................................................................................................... 236 

Prepared Statement ............................................................................................. 237 

Dr. Curtis W. Copeland, Ph.D., Specialist in American National Government, 

Government and Finance Division, Congressional Research Service 

Oral Testimony ..................................................................................................... 243 

Prepared Statement ............................................................................................. 245 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Letter from the Competitive Enterprise Institute and FreedomWorks, submitted by the Honorable Steve Cohen, a Representative in Congress from 

the State of Tennesse, and Chairman, Subcommittee on Commercial and 

Administrative Law ............................................................................................. 3 

Prepared Statement of Earthjustice, submitted by the Honorable Steve 

Cohen, a Representative in Congress from the State of Tennesse, and 

Chairman, Subcommittee on Commercial and Administrative Law ............... 4 

Prepared Statement of the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, Member, Committee on the Judiciary, 

and Ranking Member, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 19 

Page

IV 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Chairman, Committee on the 

Judiciary, and Member, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 21 

Article from The Des Moines Register, dated Tuesday, May 14, 2002, submitted by the Honorable Steve King, a Representative in Congress from 

the State of Iowa, and Member, Subcommittee on Commercial and Administrative Law ........................................................................................................... 162 

Article from The Des Moines Register, dated April 10, 2002, submitted by 

the Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Member, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 164

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of David M. Mason, Visiting Senior Fellow, The Heritage 

Foundation, submitted by the Honorable Trent Franks, a Representative 

in Congress from the State of Arizona, and Ranking Member, Subcommittee 

on Commercial and Administrative Law ........................................................... 266 

Article from Consumer Freedom, submitted by the Honorable Steve King, 

a Representative in Congress from the State of Iowa, and Member, Subcommittee on Commercial and Administrative Law ......................................... 271 

Response to Post-Hearing Questions from Robert F. Kennedy, Jr., Chairman, 

Waterkeeper Alliance ........................................................................................... 272 

Response to Post-Hearing Questions from Gary D. Bass, Ph.D., Executive 

Director, OMB Watch .......................................................................................... 276 

Response to Post-Hearing Questions from Lynn Rhinehart, Associate General 

Counsel, AFL-CIO ................................................................................................ 282 

Response to Post-Hearing Questions from Veronique de Rugy, Ph.D., Senior 

Research Fellow, Mercatus Center at George Mason University .................... 286 

Response to Post-Hearing Questions from Michael Abramowicz, Professor, 

George Washington University Law School ....................................................... 296 

Response to Post-Hearing Questions from Curtis W. Copeland, Ph.D., Specialist in American National Government, Government and Finance Division, Congressional Research Service ................................................................. 300 

(1) 

MIDNIGHT RULEMAKING: 

SHEDDING SOME LIGHT 

WEDNESDAY, FEBRUARY 4, 2009 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 11:10 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Steve 

Cohen (Chairman of the Subcommittee) presiding. 

Present: Representatives Cohen, Watt, Maffei, Franks, Coble, 

Issa, Smith, and King. 

Mr. COHEN. This hearing of the Judiciary Committee’s Subcommittee on Commercial and Administrative Law will now come 

to order. 

Without objection, the Chair will be authorized to declare a recess of the hearing. 

I would like to begin by welcoming everyone to the first hearing 

of the Subcommittee in the 111th Congress. In particular, I wish 

to extend warm regards to the Ranking Member of the Subcommittee, Mr. Franks, who I look forward to working with. Pretty 

much look forward to working with all the Members of the Subcommittee on both sides of the aisle. And would like to be welcoming our new Member, Mr. Maffei, who is not here yet. 

I will now recognize myself for a short statement. 

Despite the fact that many aspects of the Bush administration 

were winding down operations after the November 4, 2008 election, 

administrative agencies were ramping up their rulemaking. 

A flurry of regulatory activity went on between the November 

presidential election and inauguration day, with the former Administration attempting to make a final impact. 

This midnight regulation period is a time without political accountability, where controversial actions will not cost the Administration’s party votes. 

Under the cover of darkness, the Bush administration used the 

midnight regulatory period to promulgate numerous regulations 

that run counter to statutory mandates and the public interests. 

Other Administrations, Democrat, as well, have done the same, 

and each are wrong. 

Midnight rulemaking has been criticized as an effort of an outgoing Administration to tie the hands of the next Administration. 

While the tactic of flooding the Federal Register at the end of an 

2 

Administration has been used by Presidents of both parties, these 

regulations recently experienced through this Bush administration 

have been particularly troubling. 

I have both procedural and substantive concerns about the Bush 

administration’s use of midnight rulemaking. Regulatory experts 

across the political spectrum agree that the hurried process of midnight rulemaking leads to inherently flawed policy. 

During the end of the Bush administration, agencies reportedly 

cut corners and administrative procedure by rushing regulations 

through the system without proper regulatory review. 

In the case of many of the most significant rules, the public comment period was abridged. Significant public comments were ignored, and acceptable rulemaking practices were tossed aside. 

The Administration’s desire to make it more difficult to revoke 

controversial rules led to other questionable tactics. 

In an effort to ensure that the rules would go into effect prior 

to inauguration day, the Administration reportedly categorized several significant rules as minor, as opposed to major, so that their 

effective dates would be 30 days after publication in the Federal 

register rather than 60 days. 

A memo issued by then White House Chief of Staff Joshua 

Bolton in May 2008 announced the end of midnight regulations, 

stating that except in extraordinary circumstances, final regulations should be issued no later than November 1, 2008. 

Nevertheless, the Bolton memorandum was brushed aside by the 

Bush administration, and dozens of controversial regulations went 

well beyond that deadline. 

These included regulations on the environment, civil rights, 

workplace safety, opportunities to study medical marijuana, abortion rights, regulatory preemption, and online gambling. 

Instead of implementing midnight regulations only in extraordinary circumstances, midnight regulations were used as parting 

gifts to favorite industries of political interests. 

As several of our witnesses will recount today, the impact of midnight regulations on individuals, businesses, workers, science and 

the environment is profound. 

When regulations jeopardize public health, safety and welfare, 

Congress has a duty to respond. This hearing today will explore 

whether the Congressional Review Act, the appropriations process 

or an approach like Mr. Nadler’s legislation, H.R. 34, is the best 

way to proceed. 

Although we are transitioning to a new era, Congress and the 

American people have an obligation to examine and rectify wreckage left behind by the Bush administration, including those egregious midnight regulations. 

For the comfort of the minority party, I want them to know that 

I plan to introduce and will introduce into the record, without objection, a statement from a very much nonpartisan and, I think, 

conservative group, the Competitive Enterprise Institute, that specifically requests that all of our actions look in a bipartisan manner 

toward this Administration and future Administrations and makes 

sure that what is good for the goose is good for the gander. 

And I certainly concur in that and would like to enter the Freedom Works letter of February 3 into the record, as well as a stateVerDate Aug 31 2005 11:29 May 21, 2009 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\COMM\020409\47033.000 HJUD1 PsN: 47033
3 

ment from Earth Justice, that was asked to be a witness, but was 

unable to be included in our list of witnesses, and include its statement, with unanimous consent, into the record. 

[The information referred to follows:] 


1.eps
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Mr. COHEN. With those preliminary remarks, I would like to recognize my colleague, Mr. Franks, the distinguished Ranking Member of the Subcommittee, and whose Cardinals came close to a 

Super Bowl championship, for his opening remarks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. I am just grateful 

to be here this morning. I am grateful to be here with you as the 

Subcommittee on Commercial and Administrative Law meets for 

the first time. 

I want to congratulate you on becoming the Chairman of this 

Subcommittee, and I want to warmly welcome our witnesses, if it 

so happens, and certainly welcome the opportunity to begin our 

consideration of the administrative law issues during this Congress. 

The Commercial and Administrative Law Subcommittee spent 

next to no time on administrative law last term. The Subcommittee 

spent more time on commercial law, but still that is not what absorbed the majority of the Subcommittee’s attention. 

Instead, the Subcommittee spent the greatest portion of its time 

on bashing the Bush administration and the Bush administration’s 

Department of Justice. 

Mr. Chairman, I hope today that we can turn a new page and 

that Presidents of both parties and Presidents in most modern Administrations, of course, we recognize that they have promulgated 

an increased number of regulations during their final months in office. 

In fact, it was Jimmy Carter whose Administration’s end-of-term 

activity gave birth to the phrase ‘‘midnight regulations.’’ And President Clinton published even more. 

The George W. Bush administration, looking back on the Clinton 

debacle, took some concerted and constructive steps to introduce 

order into the end-of-term process. 

It called for all new regulations planned for the last part of its 

tenure to be proposed by June 1, 2008 and it called for all of these 

regulations to be promulgated by November 1, 2008. 

The Bush administration’s policy provided for exceptions and 

some exceptions, in the end, were made. But on the whole, the 

process was more orderly than the chaos that attended the final 

days of the Clinton administration. 

Accordingly, I hope we won’t spend our time on bashing the Bush 

administration for doing less of what all recent Administrations 

have done. Let us instead devote ourselves to the more important 

task. 

Presidents are elected for 4 years, and unless we are to craft prohibition for all regulatory activity during a second term, we should 

use this hearing as an opportunity to begin to build upon the improvements to the regulatory process that the Bush administration 

undertook, building on the improvements of previous Administrations. 

Let us, therefore, ask how can we reform the entire regulationwriting process, because midnight regulations are just one symptom of a dysfunctional and outdated administrative law system 

governed by the 63-year-old Administrative Procedure Act. 

Throughout the process of writing regulations, we need to improve procedures. We need to ensure, first, universal and better 

19 

cost-benefit analyses; sounder science; more transparency; better 

public participation; more negotiated rulemaking; rights of the Fed 

to support e-rulemaking; stronger review of the agency’s regulatory 

development processes; and, an end to the proliferation of supposedly nonbinding guidance that seeks to make an end run on the 

requirements of rulemaking. 

These are just some of the improvements that we can make to 

the rulemaking process that governs so much of the Federal Government’s lawmaking activity. 

If we can progress on these improvements, we will reduce the 

controversy over end-of-administration rulemaking by bringing 

more transparency and objectivity into the entire rulemaking process, no matter when it occurs during the course of any Administration. 

Other reforms include improving our review of agency regulations under the Congressional Review Act, and, of course, above all, 

Congress can dedicate itself anew to writing clearer, more detailed 

and more definitive statutes. 

In this way, Congress can better exercise the policymaking authority entrusted to it by the Constitution and not transfer that authority excessively to administrative agencies, which are accountable only to the people in indirect ways through the President or, 

in the case of so-called independent agencies, even more indirectly. 

In the 108th and the 109th Congresses, we considered those topics so important that we embarked on a new special project, the 

Administrative Law Process and Procedure Project for the 21st 

Century. 

This project generated a number of good proposals. We have yet 

to conclude our important work in this area. Yet, the 21st century 

marches on, Mr. Chairman, and the burden of regulations imposed 

under an outdated system grows. 

And so, sir, again, I am glad that we are here today and that the 

topic of administrative law is the first of which we turn in this 

term. And I hope that this will be a fruitful field of bipartisan endeavor in this term, and I look forward to working with you. 

Thank you. 

Mr. COHEN. I thank the gentleman for his statement. 

Without objection, other Members’ statements, opening statements, will be included in the record. 

And I want to assure the gentleman, as I did in my opening 

statement, that I do want this to be bipartisan and to look at the 

future to all Administrations. 

[The prepared statement of Mr. Franks follows:] 

PREPARED STATEMENT OF THE HONORABLE TRENT FRANKS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ARIZONA, MEMBER, COMMITTEE ON THE JUDICIARY, 

AND RANKING MEMBER, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE

LAW

Mr. Chairman, it is a pleasure to be here with you today as the Subcommittee 

on Commercial and Administrative Law meets for the first time in the 111th Congress. I extend a warm welcome to our witnesses. And I welcome the opportunity 

to begin our consideration of administrative law issues during this Congress. 

The Commercial and Administrative Law subcommittee spent next to no time on 

administrative law last term. The Subcommittee spent more time on commercial 

law, but still, that is not what absorbed the majority of the Subcommittee’s attenVerDate Aug 31 2005 11:29 May 21, 2009 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 H:\WORK\COMM\020409\47033.000 HJUD1 PsN: 47033
20 

tion. Instead, the Subcommittee spent the greatest portion of its time on bashing 

the Bush Administration and the Bush Administration’s Department of Justice. 

Mr. Chairman, I hope that today we can turn a new page. Presidents of both parties, and Presidents in most modern administrations, have promulgated an increased number of regulations during their final months in office. 

In fact, it was President Jimmy Carter whose administration’s end-of-term activity gave birth to the phrase ‘‘midnight regulations.’’ And President Clinton published even more. 

The George W. Bush Administration, looking back on the Clinton debacle, took 

some concerted and constructive steps to introduce order into the end-of term process. It called for all new regulations planned for the last part of its tenure to be 

proposed by June 1, 2008. And it called for all of these regulations to be promulgated by November 1, 2008. 

The Bush Administration’s policy provided for exceptions, and some exceptions, in 

the end, were made. But on the whole, the process was more orderly than the chaos 

that attended the final days of the Clinton Administration. 

Accordingly, let’s not spend our time bashing the Bush Administration for doing 

less of what all recent administrations have done. Let us instead devote ourselves 

to a more important task. Presidents are elected for four years, and unless we are 

to craft a prohibition on all regulatory activity during a second term, we should use 

this hearing as an opportunity to begin to build upon the improvements to the regulatory process that the Bush Administration undertook, building on the improvements of previous administrations. Let us therefore ask: ‘‘How can we reform the 

entire regulation-writing process?’’ Because midnight regulations are just one symptom of a dysfunctional and outdated administrative law system, governed by the 63- 

year-old Administrative Procedure Act. 

Throughout the process of writing regulations, we need to improve procedures. We 

need to insure: 

• universal and better cost-benefit analysis; 

• sounder science; 

• more transparency; 

• better public participation; 

• more negotiated rulemaking; 

• widespread ‘‘e-rulemaking;’’ 

• stronger review of the agencies’ regulatory development processes; and 

• an end to the proliferation of supposedly non-binding ‘‘guidance’’ that seeks 

to make an end run on the requirements of rulemaking. 

These are just some of the improvements that we can make to the rulemaking 

process that governs so much of the federal government’s law-making activity. If we 

can make progress on these improvements, we will reduce the controversy over endof-administration rule-makings by bringing more transparency and objectivity to the 

entire rule-making process, no matter when it occurs during the course of any administration. 

Other worthy reforms include improving our review of agency regulations under 

the Congressional Review Act. And, of course, above all, Congress can dedicate itself 

anew to writing clearer, more detailed, and more definitive statutes. In this way, 

Congress can better exercise the policy-making authority entrusted to it by the Constitution—and not transfer that authority excessively to administrative agencies accountable to the people only indirectly through the President or, in the case of socalled independent agencies, even more indirectly. 

In the 108th and 109th Congresses, we considered these topics so important that 

we embarked on a special project, the Administrative Law, Process, and Procedure 

Project for the 21st Century. This project generated a number of good proposals. We 

have yet to conclude our important work in this area. Yet the 21st Century marches 

on, and the burden of regulations imposed under an outdated system grows. 

So Mr. Chairman, again, I am glad that we are here today, and that the topic 

of administrative law is the first to which we turn this term. I hope that this will 

be a fruitful field of bipartisan endeavor this term, and I look forward to working 

with you. 

[The prepared statement of Mr. Conyers follows:] 

21 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, CHAIRMAN, COMMITTEE ON THE JUDICIARY, AND MEMBER, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

Let me first thank Steve Cohen, the new Chairman of the Subcommittee on Commercial and Administrative Law, for holding this timely hearing on the issue of socalled ‘‘midnight rules.’’ 

No issue within the Subcommittee’s jurisdiction is now more important. Regulations issued during the final weeks of the Bush Administration may have a lasting 

impact on the environment, on civil liberties at home and abroad, on the wages and 

working conditions of U.S. workers, on highway safety, and on many other matters 

of concern to the American people. 

We will hear from seven distinguished and knowledgeable witnesses at today’s 

hearing. I’m interested in hearing their views on the following three issues: 

First, is the Bush Administration’s record on midnight rulemaking subject to criticisms that its predecessors’ records are not? In particular: 

• Did the Bush Administration strategically issue midnight rules in an attempt 

to avoid meaningful public and Congressional scrutiny of its controversial 

policies? 

• Did the Bush Administration’s midnight rulemaking depart from well-established regulatory practices and procedures? 

• Did the Bush Administration’s midnight rulemaking favor special interests 

over the public interest, in a way that earlier administrations’ midnight rules 

did not? 

Second, when and why should we be concerned about midnight rules—whether 

they spring from a Democratic or a Republican administration? Is midnight rulemaking an undesirable way to make public policy? 

And third, should Congress pass legislation governing midnight rulemaking? Or 

does Congress already have at its disposal effective tools to deal with objectionable 

midnight rules, including resort to the Congressional Review Act and appropriations 

restrictions? If legislation is needed, what particular form should it take? I especially look forward to hearing Jerry Nadler’s views on that last question. 

Thank you, again, Chairman Cohen. 

Mr. COHEN. I am now pleased to introduce the witness for our 

first panel for today’s hearing, the Honorable Representative 

Jerrold Nadler. 

Congressman Nadler represents New York’s 8th congressional 

district, which includes Manhattan’s west side below 89th, and I 

guess down to the battery; also, areas of historic Brooklyn. 

Congressman Nadler was first elected to the House in 1992, after 

serving 16 years in the New York State Assembly. In 2004, he was 

elected with a resounding 80 percent of the vote. 

Throughout his career, he has championed civil rights, civil liberties, efficient transportation, and a host of progressive issues, 

such as access to health care, support for the arts, and the protection of the Social Security system. 

He is a voice for the voiceless. In his roles as an assistant whip 

and a senior Member of both the House Judiciary and Transportation Committees, Congressman Nadler has the opportunity on a 

daily basis to craft and shape the major laws that govern our country. 

He currently serves as Chairman of the Constitution, Civil 

Rights and Civil Liberties Subcommittee of Judiciary, which considers all proposed constitutional amendments and deals with such 

issues as freedom of expression, religious freedom, privacy, due 

process, civil rights, reproductive choice, and lesbian, gay, bisexual 

and transgender rights. 

Thank you for your willingness to participate in today’s hearing. 

22 

And although I am sure you know the procedure, I will go over 

it for the benefit of our other witnesses. 

Without objection, your written statement will be placed into the 

record, and we would ask that you limit your oral remarks to 5 

minutes. We have a lighting system with a green light, which is 

for go. At 4 minutes, it turns yellow, which is like the 2-minute 

mark in the NFL. Then at the 5-minute mark, you get a red light, 

which means you are about at the end of your testimony. 

After each witness has presented his or her testimony, Subcommittee Members will be allowed to ask you questions, subject 

to the 5-minute limit. 

After Mr. Nadler testifies, we might have votes, and we are going 

to try to take into consideration Mr. Kennedy’s schedule and have 

him, without any objection, be our first witness and have questions 

of him so he can make an airplane and have time to catch a fast 

train. Get me a ticket back to New York. 

Mr. Nadler, will you proceed with your testimony? 

TESTIMONY OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW 

YORK 

Mr. NADLER. Thank you, Mr. Chairman, Ranking Member 

Franks, and my fellow Members of the Judiciary Committee. 

I appreciate the opportunity to testify before you today on this 

very important issue. 

The problem of midnight rules is not a new one, but the practice 

is prone to abuse and undercuts our democratic process. 

That is why, on the first day of this Congress, I reintroduced the 

Midnight Rule Act, H.R. 34, which would allow incoming agency 

heads to prevent rules adopted within the last 3 months of the previous Administration from going into effect. 

This legislation lays out an approach to enable an incoming 

President to deal with midnight rules without tying him up for 

months or years and preventing him from implementing his agenda 

or her agenda. 

When the President rushes to finalize regulations in advance of 

an incoming Administration, especially during the lame-duck period, that President binds the hands of his successor for 6 months 

to as long as 2 years. 

This can be accomplished with minimal political accountability 

by the outgoing President or by the President’s party, whose members hope to retain some of their jobs. 

In this way, midnight rules differ from other executive actions, 

such as executive orders, which the new President can change, if 

he wishes, upon assuming office. 

The conduct of the outgoing Bush administration has highlighted 

the problem in several ways. First, the Bush administration rushed 

many rules through the process at an accelerated pace. This was 

facilitated by a memo issued by the White House chief of staff, 

Josh Bolton, on May 9, 2008. 

It instructed agencies to finalize regulations by November 1, enabling the outgoing Administration to put in place regulations just 

prior to the swearing in of the new President. 

23 

The results of the Bolton memo are clear. In October and November of last year, Federal agencies submitted 30 ‘‘major rules,’’ that 

is, those with an economic impact of at least $100 million each, to 

the Government Accountability Office. 

During the same period in 2007, that number was only 13. This 

represents an increase over 1 year of 130 percent. 

Similarly, the number of significant rules submitted to the Office 

of Information and Regulatory Affairs September 1, 2008 and December 31, 2008 represents an increase of 102 percent in the same 

period in 2007, 190 significant final rules as opposed to 94 such 

rules the year before. 

Second, lack of accountability in its waning weeks enabled the 

Administration to adopt the highly controversial rules on family 

planning, endangered species and global warming, that may not 

have passed muster in the more public debate. But since there was 

no more public accountability, no election to look forward to, they 

could do what they wanted and bind the hands of the new Administration. 

Finally, these midnight rules allow the Administration to extend 

its policies well into the next Administration, despite the fact that 

the voters voted to move in a new direction. 

The Midnight Rule Act would address this problem in several 

ways. It would give a new agency head a limited period of time to 

review and act on regulations adopted in the final 90 days of a 

President’s term. 

The new agency head would have 90 days after being confirmed 

to his office or her office to disapprove a midnight rule by publishing a statement of disapproval in the Federal Register and 

sending a notice of disapproval to the congressional Committee or 

Committees of jurisdiction. 

In order to address emergencies, limited exceptions are provided 

in cases of an imminent threat to health or safety, enforcement of 

criminal laws, implementation of an international trade agreement, 

and national security. 

Congress could revoke some of these rules under the Congressional Review Act. However, the Congressional Review Act requires 

individual votes on each rule. 

Given the sheer number of midnight rules issued by the Bush administration or perhaps by Administrations in the future, this 

would require more time than Congress has available, while we are 

trying to pass an economic recovery package, finalize FY 2009 appropriations bills, and prepare for a new budget for the upcoming 

fiscal year. 

Most importantly, this proposal would place a check on midnight 

rules. The American people have a right to hear the views of candidates for President and other offices on very important issues, 

and then to be governed by the choice that they make in the election, and not to be governed by the dead hand of the choice they 

made 4 or 8 years earlier. 

The American people are entitled to alter the direction of their 

government based on new circumstances or even to change their 

minds, if they wish. That is why we have a new presidential election every 4 years, and that is why the policies of the old outgoing 

24 

Administration should not be permitted to continue and to bind the 

new incoming Administration for 6 months to 2 years. 

I have received many helpful comments and suggestions on ways 

to clarify this legislation and I hope to work with my colleagues to 

fine-tune it. 

The core policy is that the will of the electorate should not be 

frustrated in effectuating new policy by the old Administration. 

Voters have a right to debate critical issues in the selection of their 

representatives and to have their choices implemented after the 

electoral process is finished. 

Thank you again for the opportunity to testify today and I look 

forward to working with you all to comprehensively address this 

problem in the days ahead. 

[The prepared statement of Mr. Nadler follows:] 

PREPARED STATEMENT OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW YORK

Thank you, Mr. Chairman, Ranking Member Franks, and my fellow members of 

the Judiciary Committee. I appreciate the opportunity to testify before you today on 

this very important issue. 

The problem of midnight rules is not a new one, but the practice is prone to abuse 

and undercuts our democratic process. 

That is why, on the first day of this Congress, I reintroduced the Midnight Rule 

Act, H.R. 34, which would allow incoming Agency heads to prevent rules adopted 

within the last three months of the previous administration from going into effect. 

This legislation lays out an approach to enable an incoming president to deal with 

midnight rules—that is, rules finalized, or which took effect, at the very end of his 

predecessor’s term—without tying up the new president for months or years trying 

to implement his agenda. 

The 22nd Amendment to the Constitution limits a president to two terms in office. 

Midnight rules can be abused to allow a president to reach into a third term without 

any accountability. 

Past presidents have used the final weeks of their terms to take actions, or advance policies, that would be politically difficult prior to an election. It is a tradition 

going back to the earliest days of the Republic. 

When a president rushes to finalize regulations in advance of an incoming administration, especially during the lame duck period, that president binds the hands of 

his successor for six months to as long as two years. This can be accomplished with 

minimal political accountability by the president—who is leaving office—or by the 

president’s party, whose members hope to retain their jobs. 

In this way, midnight rules differ from other executive actions, such as executive 

orders, which a new president can change upon assuming office. 

The conduct of the outgoing Bush administration really highlighted the problem 

in several ways. 

First, the Bush administration rushed many rules through the process at an accelerated pace. This was facilitated by a memo issued by the White House Chief of 

Staff, Josh Bolten, on May 9th, 2008. It instructed agencies to finalize regulations 

by November 1st, enabling the outgoing administration to put in place regulations 

just prior to the swearing-in of the new President. 

The results of the Bolton memo are clear. In October and November of 2008, federal agencies submitted 30 ‘‘major rules’’ (those with an economic impact of at least 

$100 million), to the Governmental Accountability Office. During the same period 

in 2007, that number was only 13. This represents an increase of 130%. 

Similarly, the number of ‘‘significant rules’’ submitted to the Office of Information 

and Regulatory Affairs increased by 102% between September 1, 2008 and December 31, 2008 over the same period in 2007 (190 significant final rules as opposed 

to 94 such rules the year before). 

Second, the lack of accountability in its waning weeks enabled the Bush administration to adopt highly controversial rules that may not have passed muster in a 

more public debate. 

These midnight rules adopted by the Bush Administration will, among other 

things, curtail access to family planning services, and even to information about reproductive health options; weaken enforcement of the Endangered Species Act with 

respect to federal projects which might threaten endangered species; allow the agenVerDate Aug 31 2005 11:29 May 21, 2009 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 H:\WORK\COMM\020409\47033.000 HJUD1 PsN: 47033
25 

cies to bypass reviews of global warming and potential ecological impacts; and allow 

mining companies to dump toxic waste without concern for environmental harm. 

Finally, these midnight rules allow the Administration to extend its policies well 

into the new administration despite the fact that the voters have voted to move in 

a new direction. 

The Midnight Rule Act would address this problem in several ways. 

It would give a new agency head a limited period of time to review and act on 

regulations adopted in the final 90 days of a president’s term. The new agency head 

would have 90 days after being appointed to disapprove a midnight rule by publishing a statement of disapproval in the Federal Register, and sending a notice of 

disapproval to the congressional committees of jurisdiction. 

In order to address emergencies, limited exceptions are provided in cases of an 

imminent threat to health or safety, enforcement of criminal laws, implementation 

of an international trade agreement and national security. 

Congress could revoke some of these rules under the Congressional Review Act. 

However, the CRA would require individual votes on each rule. Given the sheer 

number of midnight rules issued by the Bush Administration, this would require 

more time than Congress has available while we are trying to pass an economic recovery package, finalize FY2009 appropriations bills, and prepare for a new budget 

for the upcoming fiscal year. 

The Midnight Rule Act would give the new administration the opportunity to review carefully the last minute handiwork of its predecessor. Rulemaking is, in the 

first instance, a function of the executive. Congress and the courts would still retain 

their authority to act as a check on the executive. 

Most importantly, this proposal would place a check on midnight rules. The American people have a right to hear the views of candidates for president and other offices on these very important issues and then to be governed by the choice they 

made in the election, and not by the dead hand of a choice they made four years 

earlier. The American people are entitled to alter the direction of their government 

based on new circumstances, or even to change their minds. That is why we have 

a new presidential election every four years. 

I have received many helpful comments and suggestions on ways to clarify this 

legislation, and I hope to work with my colleagues to fine tune it. 

The core policy is that the will of the electorate should not be frustrated in effectuating new policy. Voters have a right to debate critical issues in the selection of 

their representatives and to have those choices realized though the electoral process. 

Thank you again for the opportunity to testify today, and I look forward to working with you all to comprehensive address this problem in the days ahead. 

Mr. COHEN. Well, I thank the gentleman for his statement. 

The Chair does not have a question of Mr. Nadler and would entertain questions from the Subcommittee. If not, we could proceed 

to have the second panel come forward and Mr. Kennedy could give 

his remarks first, and then he could catch his airplane. 

Without objection, can we let Mr. Nadler go? 

Mr. NADLER. Thank you. 

Mr. COHEN. Let my person go. Thank you. 

If the second panel would come up, we are going to forego the 

traditional introductions of the entire panel for purposes of trying 

to accommodate the airplane schedule that Mr. Kennedy has, introduce him, have his statement and have questions from the panel. 

Our second witness is Robert F. Kennedy, Jr. Mr. Kennedy is 

credited with leading the fight to protect New York City’s water 

supply, but his reputation as a resolute defender of the environment stems from a litany of successful legal actions. 

The list includes winning numerous settlements for Riverkeeper, 

prosecuting governments and companies for polluting the Hudson 

River and Long Island Sound, arguing cases to expand citizen access to the shoreline, and suing treatment plants to force compliance with the Clean Water Act. 

26 

Mr. Kennedy acts as chief prosecuting attorney for Riverkeeper. 

He also serves as senior attorney for the National Resources Defense Council. And I may say his name, in addition to the polar 

bear, forced me to write a check occasionally. And is the President, 

also, of the Waterkeeper. 

At Pace University School of Law, he is a clinical professor and 

supervising attorney at the Environmental Litigation Clinic in 

White Plains, New York. 

Earlier in his career, he served as assistant DA in New York 

City; published several books, including ‘‘The Riverkeepers’’ (1997), 

with John Cronin. His articles have appeared in The New York 

Times, The Atlantic Monthly, The Wall Street Journal, Esquire, The 

Village Voice, The Washington Post, et cetera. 

He has been on radio, ‘‘Air America,’’ with ‘‘Ring of Fire.’’ And 

he is the father of six children, and he hopes to leave an earth 

similar to the one that he has had the opportunity to inhabit. 

Mr. Kennedy, thank you for coming to our Subcommittee. 

TESTIMONY OF ROBERT F. KENNEDY, JR., CHAIRMAN, 

WATERKEEPER ALLIANCE 

Mr. KENNEDY. Thank you, Mr. Chairman, and all the Members 

of the Committee and my fellow panelists. Thanks for taking into 

account my travel schedule. 

I have filed extensive comments with the Committee, going 

through the dozens of midnight regulations passed by the Bush administration over the past couple of months that impact the environment. 

I am going to focus on four of those today very, very quickly, because these are regulations that we think should be seriously considered by your Committee and by Congress for review under the 

Congressional Review Act. 

Also, we strongly support the passage of Congressman Nadler’s 

proposed legislation, which could deal with some of these problems. 

Very briefly, the Endangered Species Act waiver, which waives 

the Endangered Species Act requirement for the Pentagon, for the 

Energy Department, for all other government agencies to engage in 

consultations with National Marine Fisheries and Fish and Wildlife 

Service when they are going to engage in an action that is going 

to harm one of these species. 

Number two, the hazardous waste regulation, which exempts 

three million tons of most highly toxic hazardous waste from regulation under RCRA. It is clear that this is going to significantly 

damage public health if we allow this to continue. 

Number three, the CAFO rules. CAFOs are factory farms, the 

worst single polluters of water in America today. They produce 500 

million tons of waste every year. 

Smithfield Foods has one facility, called the Circle Four, in Utah, 

which has 850,000 hogs. It produces more waste than all the 

human beings in New York City combined every day. 

New York City has spent about $20 billion building sewage treatment plants to treat its waste so that it doesn’t pollute the Hudson 

River and its environs. Smithfield simply dumps that waste into 

the environment. It is illegal. They have been able to corrupt public 

officials in order to get away with this. 

27 

They cannot produce a pound of pork or a pound of bacon or a 

pork chop cheaper and more efficiently than a family farmer, a traditional farmer, unless they break the law, unless they shift their 

cleanup costs to the public. Their cleanup costs are much greater 

than those that accrue on traditional farms. 

The ‘‘Raleigh News and Observer,’’ in 1993, won the Pulitzer 

Prize for a five-part series that showed how factory farmers had 

corrupted virtually every relevant official in the state to get them 

to overlook the pollution from these facilities. 

Their whole business contemplates illegal behavior and their capacity to avoid enforcement of that. They were easily able to do 

that during the Bush administration, which was willing to overlook 

this illegal and corrupt behavior that was damaging communities, 

the environment, putting family farmers out of work. 

Now, the Bush administration has institutionalized that lack of 

enforcement through this bill. 

Finally, the buffer zone rule, and this, to me, is the most important one, Mr. Chairman. This is the rule that is the last barrier 

that imposed any controls at all on mountaintop removal. 

A couple of weeks ago, I flew over to Cumberland and I saw— 

if the American people could see what I saw in West Virginia and 

eastern Kentucky, there would be a revolution in this country. 

We are literally cutting down the Appalachian Mountains, these 

historic landscapes where Daniel Boone and Davy Crockett roamed, 

with these giant machine called draglines, which are 22 stories 

high. 

I flew under one of them in a Piper Cub. They cost a half billion 

dollars and they practically dispense with the need for human 

labor, which indeed is the point. 

I remember a conversation I had with my father when I was 14 

years old, during the 1960’s, when he was fighting strip mining in 

Appalachia. And he said to me, ‘‘They are not just destroying the 

environment, but they are permanently impoverishing these communities, because there is no way that they can regenerate an 

economy from these landscapes that are left behind.’’ 

And he said, ‘‘They are doing it so they can break the unions,’’ 

and that is exactly what they did. When he told me that, there 

were 140,000 unionized mine workers in West Virginia digging coal 

out of tunnels in the day. Today, there are fewer than 11,000 miners left in the state. Almost none of them are unionized, because 

the strip industry isn’t—they are taking more coal out of West Virginia than they were in 1968. 

The only difference is back then, at least some of that money was 

being left in the state for salaries, for pensions, for reinvestment 

in the communities. Today, it is all going straight up to Wall Street 

to the corporate headquarters of Massey Coal, Peabody Coal, Arch 

Coal, and the big banking houses, like Bank of America and Morgan, which own these operations. 

Ninety-five percent of the coal in West Virginia are owned by 

out-of-state operations, mainly on Wall Street. They are liquidating 

the state for cash, using these giant machines, 2,500 tons of explosives that they detonate every day in the state of West Virginia, 

the equivalent of a Hiroshima bomb once a week. 

28 

They are blowing the tops off the mountains to get at the coal 

seams beneath. Then they take the rock, debris and rubble and 

they plow it into the adjacent river valley. 

The bury the rivers, they flatten the hollows. They have already 

buried, according to EPA, 1,200 miles of rivers and streams. They 

have cut down the 460 biggest mountains in West Virginia. 

By the time they get done, within a decade, they will have flattened an area the size of Delaware. 

It is all illegal. You cannot, in the United States, take rock, debris and rubble and dump it into a waterway without a Clean 

Water Act permit, and you could never get a permit to do such a 

thing. 

So we sued them, the environmental community, Joe Lovett, 

Kentuckians for the Commonwealth, in front of a conservative republican Federal judge, Judge Charles Haden. And Judge Haden 

said the same thing I did. 

In the middle of that hearing, Judge Haden questioned the Corps 

of Engineers colonel who had allowed all this to happen and said 

to him, ‘‘This is obviously illegal. How could you let this happen?’’ 

And the Corps colonel said to him, ‘‘I don’t know, Your Honor. We 

just kind of oozed into it.’’ 

And Judge Haden ended that hearing by giving us a complete 

victory by banning all mountaintop mining, saying it is illegal from 

day one and it is illegal today, and he enjoined all of it. 

Two days from when we got that decision, lobbyists for Massey 

Coal and Peabody Coal met in the back door of the Interior Department with Stephen J. Griles, Gale Norton’s first deputy chief, who 

was a former lobbyist for Massey Coal and Peabody Coal, and who 

is now serving a 101⁄2 month jail sentence, and they rewrote one 

word, the interpretation of one word of the Clean Water Act, the 

definition of the word ‘‘fill,’’ to change 30 years of statutory interpretation to effectively overrule Judge Haden’s decision and allow 

mountaintop mining, allow the disposal of rock, debris, rubble, garbage, any solid material into any water body of the United States 

in all 50 states today. 

One barrier that we were left with after this destruction that 

happened from the Interior Department because of Griles was the 

stream buffer rule that said you can’t dispose of the stuff within 

100 feet of a perennial or ephemeral stream. 

These are the most important streams, because they feed the 

whole watershed. 

That law was left in place. And as a favor to the industry, in the 

last days of the Bush administration, this White House, which was 

the indentured service for the worst of the worst of the worst of 

these polluters, simply got rid of that rule, the last barrier to cutting down the entire Appalachian Mountains. 

Let me just say one final thing. During the Pleistocene ice age, 

where my home is in Mount Kisco, New York, it was under two 

miles of ice and the rest of North America was turned into tundra, 

with no trees left. 

The last refuge for those trees, they all retreated into one place, 

which was the Appalachian Mountains of West Virginia and eastern Kentucky. That is where they survived the ice age. 

29 

And when the ice withdrew, all of the forests in North America 

were reseeded from Appalachia. That is why it is the richest forest 

on earth, the richest ecosystem, temperate ecosystem on the face 

of the earth, because it is the only one that survived the ice age. 

And today, these companies, out of greed and ignorance, are 

doing or accomplishing what the glaciers couldn’t do, which is flattening those mountains and stealing our forests, and this Congress 

ought to do something about it. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Kennedy follows:] 

30 

PREPARED STATEMENT OF ROBERT F. KENNEDY, JR. 


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Mr. COHEN. Thank you, Mr. Kennedy. 

I will normally ask questions first, but I am going to reserve that 

right and yield to other Members who might have questions. 

Mr. Franks, do you have questions? Ranking Member Franks? 

Mr. FRANKS. Mr. Chairman, I may have questions in a moment. 

I am going to, if it is all right, yield to my colleague, Steve King, 

here first. 

Mr. KING. Thank you, Mr. Franks, our Ranking Member, and, 

Mr. Kennedy, for your testimony. 

I regret that I have not read deeply through a lot of the material 

that you have put out, but it is clear to me that you put a lot of 

material out. It is also clear to me that you have made a visit or 

two to Iowa. 

I just reflect back upon a meeting in Clear Lake a few years ago 

and a quote that I recall would be—I believe, actually, this would 

be exact—‘‘Large scale hog producers were a greater threat to the 

United States and democracy than Bin Laden’s terrorist network.’’ 

Is that an accurate quote? 

Mr. KENNEDY. I don’t know if that is accurate, but I believe it 

and I support it. And the reason for this is the same reason Teddy 

Roosevelt said it. 

Teddy Roosevelt said this Nation would never be destroyed by a 

foreign enemy, but he said that ‘‘Malefactors of great wealth, working from within, would erode and subvert American democracy.’’ 

And if you look, again, not from me, but from the ‘‘Raleigh News 

and Observer,’’ a five-part series on ‘‘Boss Hog,’’ it shows how this 

industry meticulously subverted and corrupted virtually every relevant public official in the state. 

Mr. KING. Mr. Kennedy, excuse me, I have got a lot of questions 

to ask. But I think—— 

Mr. KENNEDY. Because this—— 

Mr. COHEN. Let the witness answer the question, Mr. King, 

please. 

Mr. KENNEDY. I am answering your question, sir. And you asked 

me an inflammatory question, and I am giving you an answer for 

it. 

There are laws now—— 

Mr. KING. Your statement, Mr. Kennedy, you are telling me that 

your statement is an inflammatory question when I asked if you 

can confirm it. 

Mr. KENNEDY. I am telling you that I can confirm it, and I am 

explaining it to you so that you understand what I am talking 

about. 

Mr. KING. I would be happy to introduce your op-ed into the 

record, if you could just suspend for a moment. 

Mr. COHEN. If we cannot have a colloquy here—Mr. Kennedy, 

you go ahead and respond and if we need extra time for Mr. King 

to ask questions, we will provide it to Mr. King, to be fair to him. 

But I think it is fair that when the witness is asked a question, 

he be allowed to respond. 

Mr. Kennedy, proceed. 

Mr. KENNEDY. Today, in 14 states, there are laws that make it 

illegal to criticize food from factory farms. Now, you may say this 

161 

is anti-American. I think it is. I think it violates our first amendment rights. 

And you may say this couldn’t be true, but ask Oprah Winfrey, 

who sent for a 61⁄2 week jury trial to Texas, because she criticized, 

on her show, factory farm food. 

Do you think that is American? Do you think that that is democratic? 

And three state legislatures have now passed laws that make it 

illegal to photograph a factory farm or a factory farm animal from 

a public road. And Maryland and North Carolina, many other 

states, have laws that make it illegal for the public to learn where 

factory farms are located, even though the government has this information. 

This is an assault on our democracy. Wherever you see environmental injury, you will also see the subversion of democracy. And 

that is what I talked about when I made that statement. 

Osama Bin Laden has no power over this country to make us 

change our laws. We do. And the biggest threat to our country is 

if legislatures, and particularly those in the possession of large 

businesses, begin restricting our rights at home to do what the 

Constitution says that we can do. 

Osama Bin Laden can’t make us alter our own Constitution, but 

that is happening in this country every day because of the power 

of this industry. 

Mr. COHEN. Thank you, sir. 

Mr. King, you are recognized, and we will give you the time that 

you need for questions. 

Mr. KING. Thank you, Mr. Chairman. 

And consistent with Mr. Kennedy’s response, I have in my hand 

an op-ed dated Tuesday, May 14, 2002, in The Des Moines Register, 

titled, ‘‘I’m serious: Hog lots threaten democracy,’’ by our witness, 

Mr. Robert F. Kennedy, Jr., and it is part of a public document, but 

I would ask unanimous consent to enter that into the record, and 

I think that does flesh out the statement that he has made. 

I would also ask—— 

Mr. COHEN. Without objection. 

[The information referred to follows:] 

162 


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Mr. KING. Thank you. And I would also ask that a Des Moines 

Register article dated April 10, 2002, that is a news article that 

stipulates some of the same dialogue that took place in Iowa back 

then, unanimous consent to enter it into the record, as well. 

Mr. KENNEDY. I am happy to have that entered in the record 

with the proviso that the information in that article—that article 

is not necessarily true. 

Mr. COHEN. The articles speak for themselves. 

Mr. KENNEDY. It was taken from representatives of the Pork Producers Council and the American farmer. 

Mr. KING. Point of order, Mr. Chairman. 

Mr. COHEN. Without objection, the statement will be allowed in 

and the statement only speaks to what—— 

[The information referred to follows:] 

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Mr. KING. Point of order, Mr. Chairman. 

Mr. COHEN. Yes, sir. 

Mr. KING. Is the witness allowed to object to a unanimous consent request? 

Mr. COHEN. Well, no, he can’t and he didn’t. He did, but it wasn’t 

permitted, and he is out of order. But we understand that and that 

he didn’t understand necessarily the rules on admitting something 

into the record, because it doesn’t stand for the veracity of what is 

contained therein. 

Thank you, Mr. King. You are recognized. 

Mr. KING. Thank you, Mr. Chairman, I appreciate that. 

And I would be very happy to go deeply into this hog issue, and 

I will just make this statement into the record, and that is that on 

a per head basis, today’s hog production in Iowa and around the 

country is far, far more favorable to the environment than anything we have ever had before and it gets better every single day. 

Our water is cleaner. Our soil is cleaner. We are doing a far better job of taking care of that livestock. And we had more hogs in 

Iowa in 1952 than we have today, and they are far safer today than 

they were in 1952. 

But I think the point—— 

Mr. KENNEDY. You have got more family farmers—— 

Mr. KING. I will get to you with a question, and you will have 

an opportunity to answer, Mr. Kennedy. 

I think the point that the panel is going to be interested in is 

not so much debating the hog industry in Iowa, although I 

think—— 

Mr. COHEN. Mr. King? Mr. King? 

Mr. KING [continuing]. It is an industry—— 

Mr. COHEN. Mr. King, for the record, without objection, you have 

an additional 3 minutes, if you so desire. 

Without objection. 

Mr. KING. Thank you, Mr. Chairman. 

But I think the point that this panel is going to be interested in 

is the statement that the hog industry has corrupted public officials. I think at one point you said every public official in the state 

that had effect on this. 

And I think it impugns all elected public officials, and I think 

that is a very broad statement, and I think your record of making 

very broad statements, I think, causes us to take a look at the rest 

of your testimony here today with a bit of a jaundiced eye. 

And I will give you an opportunity to respond to that. 

Mr. KENNEDY. What I said was that the ‘‘Raleigh News and Observer’’ concluded that—and with strong documentation, a five-part 

series that won the Pulitzer Prize—that every relevant public official in the state of North Carolina had been corrupted by that industry. 

I urge you to go read that article. 

Now, what happened, once they did it in North Carolina, they 

dropped the price of hogs to $0.08 a pound at kill weight. At that 

point, states like Iowa, like your state, where the public officials 

could not be that easily corrupted, had to adopt the same system 

or they would have been out of business. 

168 

But it has put out, as you probably know, almost 100,000 independent hog farmers in Iowa. It put out 28,700 independent hog 

farmers in North Carolina. 

Mr. KING. Again, I am going to take it from that response that 

you do agree with the statement that every public official in the 

state had been corrupted by this process. 

Mr. KENNEDY. I said that that is what the ‘‘Raleigh News and 

Observer’’ concluded. 

Mr. KING. Since you have introduced that into the record, I am 

going to take it that you are endorsing that statement, and you believe it. 

Mr. KENNEDY. I am saying that that—I didn’t investigate every 

public official in the state. I am saying that is what the ‘‘Raleigh 

News and Observer’’ concluded. 

Mr. KING. And I will just allow the panel—— 

Mr. KENNEDY. They won the Pulitzer Prize for it, and maybe not 

every single one was corrupted, I can’t tell you. 

Mr. KING. There may be some exceptions. 

Mr. KENNEDY. I didn’t do the report. 

Mr. KING. Thank you. And is it also your belief that manure is 

a hazardous toxic waste? 

Mr. KENNEDY. Manure, when it is applied at agronomic rates as 

a fertilizer has a beneficial use, but when it is applied beyond agronomic rates, then it becomes a poison to the land and the water 

and people. 

Mr. KING. And you understand, Mr. Kennedy, that we do have 

regulations that limit the rate of application so that it is not a pollutant. 

Mr. KENNEDY. If you think those regulations are enforced, if you 

think those regulations are effective, I beg you to come to North 

Carolina with me and look around. Come even to Iowa and look 

around. 

That is what the captive agencies are saying, and it is complete 

baloney. 

Mr. KING. Mr. Kennedy, I would remind you that I live in the 

middle of this and the wind blows in four directions and the water 

runs downhill, and I have lived here all my life—— 

Mr. KENNEDY. I would ask you—— 

Mr. KING [continuing]. And I do not see the description you described to the panel, and I have got to take exception to it. 

Mr. KENNEDY. I would ask you how much in contributions you 

receive from the Farm Bureau and from the Pork Producers Council. 

Mr. KING. I would have to look. I would ask you how you got into 

this industry in the first place. 

Mr. KENNEDY. How did I get into it? 

Mr. KING. Yes. 

Mr. KENNEDY. Because they are the worst polluter in America. 

Mr. KING. Weren’t you assigned to do some public service that 

got you started in this, Mr. Kennedy? 

Mr. KENNEDY. You mean in protecting the environment? No. 

Mr. KING. I mean assigned to 800 hours of public service that 

was your gateway into this Hudson River issue. 

Mr. COHEN. Time has expired. 

169 

Mr. Kennedy—— 

Mr. KING. You impugn my character with your question, Mr. 

Kennedy, and I don’t question yours. 

Mr. KENNEDY. No. If you are asking me how I got into—— 

Mr. COHEN. Time has expired, and I am afraid, while this was 

very interesting, we are not going to be able to continue it. It does 

conjure up all thoughts of Barry Goldwater and extremism in the 

defense of liberties is no vice, moderation should be no virtue. 

Mr. Watt, do you seek recognition? 

Mr. WATT. Yes, sir. 

Mr. COHEN. You are on. 

Mr. WATT. Thank you, Mr. Chairman. I appreciate the Chairman 

having this hearing. 

This is a classic case where we have not only gone into the 

weeds, but into the hog farms, which gets us back pretty much to 

where Mr. King ended here, because he said there were regulations 

in effect and Mr. Kennedy said those regulations are not being followed. 

The hearing, interestingly enough, is about whether the regulations even will be in effect, because when we don’t protect ourselves 

from these kind of midnight rulemaking procedures, then we have 

the prospect at least that not even the regulations will be in effect. 

There will be a new set of regulations that have wiped out the 

past ones in the middle of the night. 

So for us to focus on any one of the particular—not that this testimony hasn’t been interesting and entertaining, and I am sure 

there are other people here who will focus on other rules that were 

either changed or not changed at the last minute, the real policy 

question we are confronted with is how can we protect ourselves 

against this kind of midnight rulemaking. 

And that really has no substantive content to it. It is a policy 

content, because sometimes when we protect ourselves against midnight rulemaking, it will be protecting ourselves against rule 

changes that we would like to have made and sometimes it will be 

protecting ourselves against changes that we would not like to have 

made. 

And on that score, I think I am fully—although I haven’t looked 

at the details of Mr. Nadler’s bill, I am fully supportive of the concept of his bill and would just give one illustration where there was 

bipartisan agreement that the rules should not be changed. 

I happen to sit on the Financial Services Committee and chaired 

the Oversight Subcommittee, and we had a hearing about the real 

estate procedures, closing process. 

The rules that were proposed right at the end of the Bush administration, Republicans—there wasn’t a single person who 

showed up who supported the changes that were being proposed, 

either Republican, Democrat, conservative, liberal however you 

wanted to categorize them. 

Everybody testified against the changes that were being proposed 

and, sure enough, in the dark of night, at a time when it appeared 

that the Administration couldn’t do—the new Administration 

wouldn’t be able to do anything about it, except in a very limited 

way by going within 60 days and, under the Congressional Review 

170 

Act, going through something as difficult as those rules and trying 

to understand them, there was no way to reverse them. 

So the concept, the policy of having a more transparent process 

I hope Mr. King isn’t disagreeing with, even though he might want 

to go at the witness on the weeds or the hogs or whatever it is that 

he was questioning. 

The real policy question is should an Administration that is on 

the way out, Republican or Democrat, because there will be a 

Democratic administration at some point, on the way out, remember that, is it a good policy practice to allow them just willy-nilly 

to change the rules that have been in play for so long? 

And I hope there is nobody here who disagrees with the policy 

that that is a bad idea, and I would have to say it is a bad idea 

whether—regardless of the content of what the new rule is and regardless of whether it is an outgoing Republican administration or 

an outgoing Democratic administration. 

That is what we need to be dealing with in this Committee. 

I didn’t ask Mr. Kennedy any questions, but I hope you will just 

say you agree with that or you don’t. 

Mr. KENNEDY. The caveat I have about that is that under the 

current regimen, the way that the regulatory process works, there 

are so many obstacles to big regulations being passed that it 

takes—in fact, I had a lawsuit against the Federal Government, 

against the EPA, in which this became a contention and was settled by the court. 

And they said that if a regulatory agency jumps through all the 

hoops that it is supposed to do from the beginning, from the original notice and comment to the end of the regulatory process, the 

average regulation takes about 8 years to get through the regulatory process. 

Mr. WATT. But you can’t have this both ways, Mr. Kennedy. 

Mr. KENNEDY. No. All I am saying—— 

Mr. WATT. And as a policy matter, it is hard for us to be on both 

sides of this issue. 

I understand the concern about the length of time that it takes 

to do rulemaking, but if every Administration is operating under 

the same set of procedures, they have to get through that process 

either far enough in advance of the time so that the new incoming 

Administration—or they shouldn’t be able to do it at midnight on 

January 19, when they are going out on January 20. 

Mr. KENNEDY. Here is the thing, Congressman, is that during 

the Clinton administration, many of these—the Administration 

tended to go through all of those steps carefully in the regulatory 

process and, at the end, they ended up with a big balloon of regulations that they had done through the last couple months. 

But in this Administration, a lot of these midnight regs—the regulatory process just began in May or June or July or August and 

in one case, the case of the Endangered Species Act, they received 

tens of thousands of comments. 

The comment reviewers had an average—had to review an average of nine comments per minute in order to get the regulations 

out. 

Also, they weren’t doing what they were supposed to do. These 

are genuine midnight regulations that didn’t receive—— 

171 

Mr. WATT. I think we are generally on the same side of the issue. 

Mr. COHEN. Time has expired. 

Mr. WATT. I just want to be sure that neither Democrats nor Republicans can game the regulatory system by doing this. That is 

the point I am trying to make. 

I yield back. 

Mr. COHEN. Thank you, sir. 

The gentleman concurs with the Ranking Member and the Chair 

in that this should be bipartisan. 

Are there others seeking recognition to question Mr. Kennedy? 

Mr. FRANKS. Mr. Chairman? 

Mr. COHEN. Ranking Member Mr. Franks? 

Mr. FRANKS. Thank you, Mr. Chairman. 

Mr. Chairman, first of all, I know that a Committee like we have 

is often difficult to keep bipartisan, but I think I heard some common ground in what Mr. Watt was saying. 

It is one of those rare moments that I want to express a sense 

of gratitude to him for that, because I know that he was the Ranking Member of a Committee that oversaw or essentially handled a 

special project, the Administrative Law Process and Procedure 

Project for the 21st hcentury, and I think that they came up with 

a number of very good proposals. 

And I think that he has hit on the central point here. It is that 

a lot of the conservatives had equally strenuous policy criticisms 

that we leveled against the Clinton administration for these midnight regulations. 

And one can debate whether these are good or bad policy things, 

but I do think that Mr. Watt is correct in that he is suggesting that 

regardless of what the policy is, we have to ascertain what the 

process should be and it, of course, has to be done within the constraint of the Constitution and some, hopefully, reasonable fashion 

that whoever is in the White House can move forward with their 

constitutional duties and, at the same time, it would be consistent, 

and at least everyone can agree on the process. 

So with that, thank you, Mr. Watt. 

Mr. Kennedy, I know that you have a number of policy concerns 

with the Bush administration’s late-term regulations. They call 

them the midnight rules, I guess, if that is what everyone wants 

to call them. I hate to use that terminology. 

But can you, however, identify for us the key administrative 

process concerns that you have about the way in which all presidential Administrations go about promulgating so-called midnight 

rules? 

Mr. KENNEDY. Well, I think you put your finger on the key issue, 

Congressman Franks, which is that there is a process in place and 

that process, if you—if that process is complied with, you can still 

pass a regulation on January 15 or January 17, and I don’t consider that a midnight regulation, if they have gone through the 

process of notice and comment and adequately reviewed those comments. 

It could still be a bad regulation, but at least it is complied with 

the process that is out there. 

The problem with these regulations is they didn’t comply with 

the process. They skirted the process. They took shortcuts. They 

172 

did things that they weren’t supposed to do in order to get these 

out the door, because they were essentially gifts to these industries 

at the last minute. 

Mr. FRANKS. Mr. Chairman, I have to suggest to you that apart 

from the discussion of process, that—and I always hate it when we 

say, ‘‘Well, they did it or they did it,’’ because I don’t think that 

is a good argument here. 

I think we should have principle persuasion be our watermark 

here. But I have to contend that the Bush administration was certainly as diligent in trying to get input and do these things as the 

other Administrations were. 

Now, again, that is not the best argument in the world, because 

I am not sure that any of the Administrations perhaps would have 

gotten all the input and specificity that some of us might wish, but 

the reality is that the Bush administration certainly has no apologies to offer to the Clinton administration or the Carter administration related to how they moved forward with this process. 

You can attack the policy for partisan reasons or for whatever 

reasons, whatever your convictions might be, but the Bush administration certainly more than comported with the trends of the 

past. 

And so I think our focus should be on reforming this process, and 

then we can debate the policy in the midst of all of that. 

So with that, Mr. Chairman, I would yield back. 

Mr. COHEN. Thank you, Mr. Franks. 

God has given us this place in 2009 and so this is the Administration we have to look to. But you are right, we should look prospectively at all Administrations and that two wrongs don’t make 

a right and all those other things. 

Mr. Kennedy, what are the particular rules that came into place 

in the last 90 days or so that are most dangerous to the environment? 

Mr. KENNEDY. The rules that I mentioned, which are the buffer 

zone rule that got rid of the 100-foot buffer around streams; the 

hazardous waste exemption rule, this is the rule that exempts hazardous waste that can be burned as fuel, that can be burned in incinerators, it is about three million tons of highly toxic hazardous 

waste every year. 

What we know about that waste is that about 80 percent of the 

people who handle that, now they are exempt from all the requirements of RCRA that they safely handle it, that they safely transport it, that they inventory it and document it; that the people who 

transport that, 80 percent of them have been cited in the past for 

violating the laws in this area. 

For example, trucking companies, small trucking companies that 

take a load of PCBs and instead of bringing them to the dump and 

documenting them, they just dump them out on the road or something like that. 

And essentially all of this waste, anything that essentially can be 

burned in an incinerator, is now exempt from the requirements of 

RCRA. 

Under the Endangered Species Act, another regulation which is 

very, very damaging, which we think, again, is one of the ones we 

173 

have selected that ought to be reviewed under the Congressional 

Review Act. 

Normally, if the Department of Defense takes an action that is 

going to endanger a species, that is going to further endanger a 

listed species, they have to do a consultation with the Fish and 

Wildlife Service and with the Corps and with NIMPs. 

In the past, there have been 70,000 of these consultations done 

and only 5 percent of the actions have been altered or stopped. So 

it is not a huge administrative burden. It doesn’t stop the agency 

from doing things that it wants to do, but it plays a valuable role. 

Now, what the new rule says is that they don’t have to do that 

consultation. They can do an internal evaluation about whether or 

not there is going to be a problem and then just go ahead and do 

it, without consulting, without any public notice, without consulting any of the other agencies of government. 

Again, the CAFO rule, the factory farm rule is another critical 

one. 

One of the midnight rules was an oil shale leasing rule that 

waives any kind of sensible or just fundamental controls for oil 

shale drilling on 20 million acres of public land in the western 

states. 

We don’t know what the oil shale drilling is going to look like. 

We don’t know what the industry is going to look like. The industry 

doesn’t exist today. 

We ought to be able to look at the industry, say here are the best 

available technologies, let us do this. Instead, the new regulation 

just says here are two million acres and do anything you want with 

it and we are not going to have any Federal controls over what you 

do. 

It doesn’t make any sense. 

Mr. COHEN. Let me ask you this. I understand the policy considerations that you have and that we share. But are you familiar 

with procedural defects in the implementation of any of these regulations that we should specifically look at and in terms of reforming 

or repealing these regulations if there was due process denial? 

Mr. KENNEDY. Well, yes. The endangered species regulation, for 

example, and this is in the testimony, received something like 

150,000 in the narrow comment period that they opened and then 

each comment—some of these comments were 20 or 30 pages long. 

They were very well thought out. They were filed by interest 

groups all over the country. 

These comments were given, on average—the reviewers who 

were charged with reviewing them were given, on average, a 

minute to review every nine of those comments. 

Some of those comments could have been 20 or 40 pages long and 

they had to review nine a minute. 

So this is not what we think of when we think of American Democracy, where there is an opportunity to—— 

Mr. COHEN. Was there a problem there with the regulatory review process that is in law or, in fact, there is a—— 

Mr. KENNEDY. No, there is not. 

Mr. COHEN [continuing]. Process that was used? 

Mr. KENNEDY. Again, I would focus less on the process than on 

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174 

er than reforming the whole regulatory review process, which I 

think is burdensome enough to pass the regulations. 

I would hesitate to put more burdens on passing of regulations. 

I think that it takes 8 years at this point to pass a regulation if 

you do it properly. 

What I would do is look at these specific regulations, how they 

were done, and many of this violated the current regulatory process 

in order to get passed, and I would take a look at that. 

That is outlined in my testimony, and I assume the testimony of 

the other panelists, that they experience the same kind of problems 

with their regulations, where there were shortcuts taken, where 

there were regulatory procedures that were ignored, and that these 

regulations just slipped through. 

They literally were midnight regulations. They weren’t just regulations that happened to be passed during January or December. 

They were literally jammed through and ignored the regulatory 

process. 

Mr. COHEN. Does another Member of the panel seek recognition? 

Mr. COBLE. Mr. Chairman? 

Mr. COHEN. Mr. Coble? 

Mr. COBLE. Move to strike the last word. 

Mr. COHEN. Without objection. 

Mr. COBLE. It is good to have the panel with us. 

Is Mr. Watt still here? 

Mr. Watt, I am going to revisit briefly the weeds and the hog 

farm just a minute. 

Mr. Kennedy, by the way, good to have all of you here. 

Mr. Kennedy, I realize you were quoting from the article, but I 

take umbrage with the conclusion that every elected official in 

North Carolina had been corrupted by that issue. But I realize that 

was not your conclusion. 

Mr. WATT. Would the gentleman yield? 

Mr. COBLE. Yes, sir. 

Mr. WATT. You all are ignoring one word. It was every ‘‘relevant’’ 

government official. 

I take the word ‘‘relevant’’ to be the people who were actually impacting that process. 

I didn’t take it personally. I am from North Carolina, too, and 

I hope the Chairman won’t take it personally. Not that he is irrelevant, but I don’t think he is relevant in the sense that they were 

talking about. 

Mr. COBLE. I want to be heard on that matter. 

Mr. Chairman, this has been an enlightening hearing thus far. 

I think one of the issues that we need to—well, strike that. Let me 

say it a different way. 

You, Mr. Chairman, and the Ranking Member both indicated 

that the Bush administration did not create a case of first impression about midnight regulation. Many Administrations have done 

it, and I am not really that bothered by it, unless the process abrogates or undermines the Administrative Procedures Act. 

Now, that brings it right into focus, I think, if that is, in fact, 

the case. 

Mr. Kennedy, do you have any specific concerns about what midnight regulations that may have erupted, for more of a better way, 

175 

in the Bush or Clinton administrations, that did perhaps undermine the process? 

Mr. KENNEDY. Yes, sir. And again, that is outlined in detail for 

each of these regulations in my testimony, in the submitted testimony, the specific ways that the Administrative Procedure Act was 

undermined in order to jam through these regulations. 

That is why we call the midnight regulations. Listen, on NRDC’s 

Web site, we have 460 just bad regulations, environmental 

rollbacks, listed there. 

We are not targeting those. We think those were bad, but they 

went through the administrative process. 

The midnight regulations that we are talking about here were 

regulations that basically skirted the process in order to be jammed 

through during the last 60 days. 

So all of them have that kind of problem. 

Mr. COBLE. Well, I thank you for that. 

Mr. Chairman, I still don’t believe this is a crisis. It may be a 

problem, but I don’t think it is a crisis. And I look forward to seeing what develops subsequent. 

And I yield back. 

Mr. COHEN. Thank you, Mr. Coble. 

If there are no other Members seeking recognition—Mr. Franks? 

Mr. FRANKS. Mr. Chairman, just briefly, the one point I would 

make, a lot of these regulations take 8 years at the present circumstance. 

So how in the world can a President that is going to be here 8 

years do anything but midnight regulations? 

Mr. KENNEDY. Well, again, when I use the term ‘‘midnight regulations,’’ I am not using the term to refer to regulations that went 

through that regulatory process over the 8 years and then happened to be passed in the last month of his Administration. 

I am using the term to refer to regulations that were conceived 

and passed during the last 2 months and really skirted that whole 

administrative process. 

I think the regulatory process takes much too long, but, in fact, 

that is what happens. And if you go through that process, I have 

no complaint. I might not like the regulation, but I have no complaint, from an administrative point of view. 

Mr. COHEN. Mr. Kennedy, we thank you for your time. 

If there are no other questions, and with deference to Wilson 

Pickett, we will continue to refer to it as midnight regulations. 

You are excused, and I appreciate your time and your attendance. 

Mr. KENNEDY. Thank you, Chairman. 

Mr. COHEN. For the rest of the panel, we will start. We thought 

we had votes 40 minutes ago, but Congress operates in its own. 

Our second witness will be Dr. Gary D. Bass. Dr. Bass is the 

founder and executive director of the OMB Watch, a nonprofit research and advocacy organization that promotes greater government accountability and transparency and increased citizen participation in public policy decisions. 

He is well known for assisting nonprofit organizations in better 

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176 

encies and, in 2003, created NPA Action as a one-stop Web site on 

building nonprofit advocacy. 

He has coauthored several books. ‘‘Seen, But Not Heard’’ is the 

book in 2007; ‘‘Strengthening Nonprofit Advocacy,’’ which was published by the Aspen Institute. 

Prior to founding OMB Watch, Dr. Bass was president of Human 

Services Information Center, where he wrote other books and numerous articles on human services issues and published the 

‘‘Human Services Insider,’’ a bimonthly newsletter on the politics of 

Federal human services programs. 

He, most notably, has worked on the preparation of the first annual report to Congress on implementation of IDEA, education for 

all handicapped children, and served as special assistant to Wilbur 

Cohen, then chair of Michigan’s governor’s task force on the investigation, prevention of abuse in residential institutions. 

Our third witness will be Lynn Rhinehart. Ms. Rhinehart is associate general counsel for the AFL/CIO, a federation representing 55 

affiliated unions and 10 million working men and women, and has 

been in that position since 1996. 

Among her responsibilities is the coordination of the Federation’s 

legal work on occupational safety and health issues, advising the 

Federation’s health and safety department on legislative and regulatory issues pertaining to safety and health. 

Ms. Rhinehart clerked for 2 years for the Honorable Joyce Green 

on the U.S. District Court for the District of Columbia, and from 

1987 to 1990, she worked as a professional staff member of the 

Senate Subcommittee on Labor, chaired by the late Howard 

Metzenbaum. 

She has published legal writings and has served as contributing 

author to Occupational Safety and Health Law, the leading treatise 

on workplace safety and health laws. 

Our fourth witness is Veronique de Rugy, senior research fellow 

at the Mercatus Center. She was previously a resident at the 

American Enterprise Institute, a policy analyst at the Cato Institute, and a research fellow at the Atlas Economic Research Foundation. 

Her research interests include the Federal budget, homeland security, tax competition, and financial privacy issues. 

Coauthor of ‘‘Action ou Taxation,’’ published in Switzerland in 

1996; currently on the board of directors of the Center for Freedom 

and Prosperity; previously, director of academic programs at the 

Institute for Humane Studies-Europe and France. 

And our fifth witness is Mr. Michael Abramowicz. He specializes 

in law and economics, spanning areas including intellectual property, civil procedure, corporate law, administrative law, and insurance law at The George Washington Law School. 

He has published numerous law reviews, and his book, 

‘‘Predictocracy: Market Mechanisms for Public and Private Decision-Making,’’ was published by the Yale University Press. 

Before coming to GW, he was at George Mason School of Law. 

He also has served as visiting assistant professor at Northwestern 

School of Law and associate professor at the University of Chicago 

School of Law. 

177 

And our final witness will be Curtis Copeland, a specialist at 

American National Government at CRS. Dr. Copeland’s expertise, 

appropriately relevant to today’s hearing, is Federal rulemaking 

and regulatory policy. 

He has previously testified before this Subcommittee as one of 

three CRS experts who are assisting the Subcommittee in the conduct of its administrative law projects. 

His contributions to the project are deeply appreciated. 

Prior to joining CRS, he held a variety of positions at the Government Accountability Office over a 23-year period. 

I thank all the witnesses for being here and for acquiescing to 

Mr. Kennedy’s schedule. 

With that, Dr. Bass, will you proceed with your testimony? 

TESTIMONY OF GARY D. BASS, Ph.D., EXECUTIVE DIRECTOR, 

OMB WATCH 

Mr. BASS. Thank you, Mr. Chairman. And I commend you and 

the Committee for having this hearing, the first out of the box. 

I think it is 25 years I have been following regulatory issues at 

the Federal level. This is the first time I have seen Congress jump 

in with great energy, and the last witness demonstrated that energy. So very interesting. 

I also want to come back to your opening comment, where you 

described this issue of midnight regulation as one of both procedure 

and substance. And I think we had this conversation with Mr. Kennedy’s statement where both issues were being talked about almost 

simultaneously. 

The breadth of what we are calling midnight regulations is overwhelming, and that is why it creates an emotional issue. It touches 

not only the environmental issues that Mr. Kennedy talked about, 

but it ranges everywhere from issues dealing with privacy of workers under the family medical leave. 

It deals with issues all the way over to low income families getting health care services under Medicaid. It deals with a range of 

issues of auto protections and consumer protections. I am thinking 

of the extension, if you will, of the number of consecutive hours 

that truck drivers can drive, all the way down to privatizing public 

toll roads. 

The point is this range of midnight regulations is so extensive 

that it has engendered so much energy and emotion, because we 

have got to keep in mind, these rules affect people. 

They affect everyone in this country. And I understand the energy that just occurred in the interchange because of that. 

I don’t think the issue is the number of rules that fall into this 

midnight regulation category. I think it is an issue about what impact it has had on people, and I think it is also about a consistent 

tone that Mr. Kennedy referred to about deregulation and serving 

certain interests. 

I think it is also that it wouldn’t matter, in my mind, whether 

it occurred at midnight or whether it occurred at the beginning of 

an Administration or the middle. 

It is the amazing amount of regulation that was put together in 

a short time span that is reason enough for Congress to bring congressional oversight to this issue. 

178 

Congressman Watt, in response to your questions, I think this is 

not just an issue about ending midnight regulation. Government 

must continue to do its work, valuable work, to protect health, safety, environment, consumer protection, a range of services on the 

regulatory front. 

We might be having a vastly different discussion if the 

Administratione, the last Administration used its waning time to 

address, say, financial regulatory issues or if it addressed chemical 

security or if it addressed food safety. 

It chose to use its time for these other kinds of agendas that 

make it much more troubling and make it harder to determine 

whether or not you should just end midnight regulation as a concept. 

We want to keep government working, we want the best of government, and we want to weed out the bad parts. 

Having said that, I think the Bolton memo that the Chairman 

referred to at the very opening was nothing more than camouflage 

for a strategy to tie the hands of the next Administration in many 

ways. 

The idea of that memo, although the deadlines all slipped, the 

idea of the memo was to make sure that the rules were published, 

that is, printed in the Federal Register as final, and made effective 

before the next Administration came in, thereby tying the next Administration’s ability to undo many of those rules. 

Mr. Kennedy referred to the endangered species rule as almost 

a mockery of democracy, when he had nine, I had seven comments 

were reviewed per minute. I think that the Bolton memo established a speedy process that greatly undermined the ability of the 

agencies to do their work in the right kind of manner. 

While it may have not violated law in certain cases, it certainly 

violated the spirit of doing rulemaking in a prudent and effective 

manner. 

So what are we concerned about in the public interest world? 

There are really three categories of these midnight rules that we 

are concerned with—those that are still rules in the pipeline. That 

is the kind that the past Administration put a handcuff on one 

wrist of the incoming Administration. 

The second are rules that got published as final rules, but are 

not yet effective. That is putting the handcuff on the other wrist, 

too. 

Then the third category are final rules that were published and 

are effective, and that is being hogtied. 

Those are the ones—probably a bad choice of words. 

Let me just conclude by saying that the Obama administration 

fixed the first two with the Rahm Emanuel memo and the OMB 

Director Orszag memo, did not address that final category and that 

is what we need to be doing. 

[The prepared statement of Dr. Bass follows:] 

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PREPARED STATEMENT OF GARY D. BASS


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Mr. COHEN. Thank you, Dr. Bass. Your time is up, and I appreciate you not using any of the language that was in the Rahm 

Emanuel memo. 

Ms. Rhinehart, will you begin your testimony? 

TESTIMONY OF LYNN RHINEHART, 

ASSOCIATE GENERAL COUNSEL, AFL-CIO 

Ms. RHINEHART. Thank you, Mr. Chairman and Members of the 

Subcommittee. Thank you for the opportunity to testify here today 

and for holding this important hearing. 

Representative Franks, I am sorry about the loss in the Super 

Bowl, but coming from Michigan, with the 0-16 Lions, we respect 

the fact that your team was able to get as far as it did. 

To fully appreciate the impact of the Bush administration’s lastminute rules as they affect working people, it is important to contrast what the Administration did do in its final months in office 

with what it didn’t do during the 8 years that the Bush administration was in charge. 

The Bush administration was one that, with rare exception, refused to issue significant rules to protect worker health and safety, 

refused to issue rules to improve workers’ wage and hour protections, except in unusual circumstances. 

The only major wage and hour rulemaking that the Administration conducted was to weaken overtime protections for workers. 

And then suddenly, this same Administration, ratcheted up its 

rulemaking activity in its final months and rushed out a number 

of rules that are harmful to workers. 

I have described a number of these rules in my written testimony, rules on conflicts of interest in providing investment advice 

to workers receiving 401(k)s; rules making it harder for workers to 

take Family and Medical Leave Act leave; rules that increase the 

number of hours truckers can be required to drive to the detriment 

of their health and the public’s health and safety. 

But in the time that we have available this morning, I would like 

to highlight the Department of Labor’s last-minute rules on the 

H2A and H2B visa programs, because I think they are illustrative 

of midnight rulemaking at its worst, significant rules that are 

rushed through the process in a deliberate effort to cement an outgoing Administration’s policy views and hoist them on the incoming 

Administration, to the detriment of workers. 

The H2A and H2B visa programs provide visas to allow employers to hire foreign workers on a temporary basis in agriculture and 

seasonal industries, in situations where there are not enough workers available for the jobs. 

For years, the system had safeguards in place to protect U.S. and 

foreign workers and to prevent abuse. 

For example, there was a government pre-hire certification process through which the Federal Government and state agencies 

verified employers’ claims that there were not enough domestic 

workers to do the jobs in question. 

The H2A question had wage standards, other labor protections, 

like the 50 percent rule, that created incentives for employers to 

hire U.S. workers rather than going and hiring foreign workers. 

199 

The H2B program was limited to temporary jobs of no more than 

10 months duration. Under the new rules, ‘‘temporary’’ has now 

been redefined as up to 3 years, which is hardly a temporary job. 

These protections were eliminated by the Bush administration in 

its new H2A and H2B rules, rules that were rushed through the 

process, issued in December, well after the supposed November 1 

deadline in the Bolton memo, and allowed to take effect in the minimum 30 days allowed by the Administrative Procedure Act rather 

than the usual 60 or more days that is typical for significant rules 

of this nature. 

We are very concerned that these new rules are going to disadvantage U.S. workers, drive down wages, and weaken protections for both U.S. and H2B and H2A foreign workers. 

They are a prime example of midnight regulations that need to 

be stopped through a congressional rider or through disapproval 

under the Congressional Review Act. 

So what can be done about rules like this? 

As I had mentioned, Congress has tools available through legislative riders and through the Congressional Review Act. The administrative agencies also have tools available to them to undo what 

they view as problematic rules. 

As other witnesses have commented, of course, the problem is 

that doing new rulemaking takes time. And with respect to the 

H2A/H2B rules and many of these other midnight rules, the rules 

are already in effect. 

And so the clock is ticking and the harmful consequences of the 

new rules are taking hold during the time period that the new Administration is doing a new rulemaking to try to undo these harmful effects of the rule. 

So there is some urgency to taking action to address what are 

viewed as the most egregious, problematic midnight rules. 

There is also a resource impact on agencies. Every dollar spent 

by agencies undoing a bad rule is a dollar that they don’t have 

available to spend on issuing new, good, protective rules. 

So we would urge Congress to take this into consideration and 

to make sure that the regulatory agencies have the money in hand 

to both deal with problems left by the prior Administration, as well 

as to get on with the business of protecting workers and the public 

health and environment in this new Administration. 

I would like to just make one last comment, which is I think you 

are hearing some agreement here today that not all midnight rules 

are the same. There are midnight rules where we might disagree 

with the policy outcome or the policy decision of the former Administration, and there are examples where we do, but the rules didn’t 

shortcut the process. 

There were lengthy public comment periods. There was lengthy 

deliberation of the rules. Nobody was really surprised that the 

rules came out. They might have been disappointed, but they 

weren’t surprised. 

I would say that the Family and Medical Leave Act rules are an 

example of that. We knew those rules were coming. We don’t like 

aspects of them. We don’t object to other aspects of them. And we 

hope that the new Administration, working with Congress, will address the problems in those rules. But they weren’t really midnight 

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1T3See ‘‘Cleaning Up and Launching Ahead,’’ Center for American Progress (January 2009) 

(finding that regulatory output increased in the final years of the Reagan, George H.W. Bush, 

and Clinton administrations); ‘‘After Midnight: The Bush Legacy of Deregulation and What 

Obama Can Do,’’ Center for American Progress and OMB Watch (January 2009) (finding that 

the George W. Bush administration’s regulatory output in 2008 far exceeded prior years). 2See Memorandum to Heads of Executive Departments and Agencies from Joshua Bolten 

(May 9, 2008) (‘‘We need to . . . resist the historical tendency of administrations to increase 

regulatory activity in their final months.’’) 3See 73 Fed. Reg. 50909 (Aug. 29, 2008); see also Testimony of Peg Seminario, Director of 

Safety Health, AFL-CIO, before the U.S. House of Representatives’ Committee on Education and 

in the same sense of the H2A/H2B rules, the rules on investment 

advice that I mentioned, that were started and finished and made 

effective in the very few last months of the Bush administration. 

That is the category of midnight rules that are of particular concern to us and I would think would be of particular concern to the 

Congress. 

Thank you. 

[The prepared statement of Ms. Rhinehart follows:] 

PREPARED STATEMENT OF LYNN RHINEHART

Mr. Chairman and Members of the Subcommittee: 

My name is Lynn Rhinehart, and I am an Associate General Counsel for the AFLCIO, a federation of 55 national unions representing more than 10 million working 

men and women across the United States. Thank you for the opportunity to testify 

today about the negative impact some of the Bush Administration’s last-minute regulations will have on workers, and about the tools available to the Obama Administration and Congress for preventing these harms. 

It is not uncommon for outgoing administrations to produce more regulations at 

the end of their tenure.1 These rules are sometimes the product of lengthy and 

thoughtful rulemaking proceedings involving full public participation, and in that 

sense, it is hard to label these rules ‘‘midnight.’’ But the Bush Administration issued 

a remarkable number of final regulations in its final months that were truly ‘‘midnight’’ rules in the worst sense of the term—last-minute regulations on important, 

substantive issues that were rushed through the process, short-circuiting public participation along the way, in order to cement the outgoing administration’s policy 

views and impose them (at least temporarily) on the incoming administration. The 

Bush Administration issued, or tried to issue, a disturbing number of midnight regulations that would undermine worker protections. The Bush Administration also 

took steps to make sure that many of its last-minute rules would take effect before 

President Obama took office, making it more difficult for the incoming Obama Administration to modify or undo these rules. 

On May 9, 2008, White House Chief of Staff Joshua Bolten issued a memorandum 

to executive agencies that instructed agencies to avoid engaging in midnight rulemaking.2 The memo directed agencies to finish rules by no later than November 1, 

2008 (except in extraordinary circumstances), and to propose rules no later than 

June 1, 2008 (except in extraordinary circumstances) if the agency wanted to finish 

the rulemaking during the Bush Administration. 

But in the waning months of the Bush Administration, it became clear that the 

Bolten memo was mere windowdressing. Agencies violated the Bolten memo with 

impunity and with no apparent consequences. 

In the final months of the Bush Administration, the Department of Labor pumped 

out numerous proposals and final rules, including many rules that undermined 

worker protections. It is important to understand that this activity was carried out 

by the same Department of Labor that for eight years had set a low water mark 

for failing to pursue rulemakings of significance to improve worker protections, except when required to act by Congress or as the result of litigation. 

Take, for example, the crucially-important area of worker safety and health. After 

President Bush took office, the Occupational Safety and Health Administration 

(OSHA) removed dozens of important workplace safety and health rules from its 

regulatory agenda and failed to issue any significant OSHA regulations except as 

a result of litigation. Yet in the waning months of the Bush Administration, political 

operatives at the Department of Labor tried to rush through a rule on risk assessment that would slow down an already-glacial OSHA standard setting process and 

impose new barriers to setting strong rules to protect workers from toxic substances 

on the job.3 The proposed rule was developed by political appointees at the DepartVerDate Aug 31 2005 11:29 May 21, 2009 Jkt 000000 PO 00000 Frm 00204 Fmt 6633 Sfmt 6621 H:\WORK\COMM\020409\47033.000 HJUD1 PsN: 47033
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Labor, Subcommittee on Workforce Protections (Sept. 17, 2008), available at http:// 

edlabor.house.gov/testimony/2008-09-17-PegSeminario.pdf. 4See Ross Eisenbrey, Economic Policy Institute, ‘‘Longer Hours, Less Pay’’ (2004) (estimating 

that DOL’s changes to the white collar rules could eliminate overtime pay for more than six 

million workers). 

ment of Labor, not career staff. It was never listed on the Department’s semi-annual 

regulatory agenda, as required by Executive Order 12866, and literally came out of 

nowhere. In their haste to rush the rule through, DOL allowed interested parties 

only 30 days to comment on the proposed rule and denied requests from the AFLCIO, other labor organizations, members of Congress, and public health groups, for 

an extension of time to submit comments and for a hearing on the proposed rule. 

The risk assessment rule also violated the Bolten memo, in that it was proposed 

on August 29, 2008—well after the supposed June 1 deadline for rules to be completed during the Bush Administration. Fortunately, the Bush Administration and 

the political appointees at the Department of Labor failed in their effort to rush out 

the secret rule on risk assessment, but the rulemaking is a telling illustration of 

midnight rulemaking at its worst. Hopefully the proposal will be quickly withdrawn 

by the Obama Administration. 

Another ‘‘near miss’’ involved proposed rules that made changes in the Department of Labor’s regulations governing the Fair Labor Standards Act, which guarantees workers the minimum wage and overtime protections. Here again, these rules 

were proposed by a Department that for eight years issued no regulations to 

strengthen wage and hour protections for workers. The Bush Administration’s only 

significant wage and hour rulemaking was to change the rules on overtime eligibility. Experts estimated that the rules could deprive more than six million workers 

of much-needed overtime pay.4 Against this backdrop, the Bush Administration’s 

last-minute effort to weaken its FLSA rules is that much more objectionable. DOL 

described the proposed rules as merely updating its rules, but in reality, many of 

the proposed new rules would result in less pay for workers. For example, the proposed rules would make it easier for employers to take a credit against their minimum wage obligations for employee tips and employer-provided meals. The rules 

would make other changes that would enlarge the overtime exemption for some employees and limit public sector workers’ ability to take compensatory time. Fortunately, here again, the political operatives at the Department of Labor were unable 

to rush out a final rule, and hopefully the proposal will be withdrawn by the Obama 

Administration. 

The Bush Administration did manage to finalize a number of rules that will have 

harmful consequences for workers. Several examples follow. These rules are listed 

in a chart attached to this testimony, along with additional rules issued in the final 

months of the Bush Administration that need to be strengthened (e.g., MSHA rules 

on Belt Air and Refuge Alternatives, and OSHA’s rule on vertical tandem lifts). 

H2A Rules: Undermining labor standards for temporary 

immigrant agricultural workers 

On December 18, 2008—well after the November 1 deadline set forth in the 

Bolten memo—the Department of Labor published final regulations that drastically 

lower wages, labor protections, and housing standards for farmworkers, severely 

limit the ability of U.S. workers to obtain employment with H2A employers, and 

limit the oversight and enforcement of the few protections that remain. The new 

rules replace a pre-hire certification process, under which DOL verified an employer’s claims about labor shortages and wage standards, with a self-attestation system 

where employers merely attest that they have abided by the rules. The rules eliminate the current requirement that H-2A employers provide free housing that meets 

certain standards, replacing it with a voucher option. And the new rules eliminate 

the role of state workforce agencies in reviewing employers’ applications. 

The new H2A rules also abolish the ‘‘50 percent’’ rule, which required employers 

to hire qualified U.S. workers who apply for work until half of the season has 

elapsed. The 50 percent rule is an important method for granting U.S. workers a 

job preference over imported temporary workers, and creates an incentive for preseason recruitment of U.S. workers. 

In order to ensure that the new rules would take effect before President Obama 

took office, the Bush Administration allowed the rules to take effect in 30 days (the 

minimum amount of time allowed by the Administrative Procedure Act), and not the 

usual 60 days for significant rules of this nature. If these new rules are allowed to 

stand—which we hope they are not—agricultural employers can be expected to take 

advantage of the new ‘‘attestation’’ system to recruit a flood of temporary agriculVerDate Aug 31 2005 11:29 May 21, 2009 Jkt 000000 PO 00000 Frm 00205 Fmt 6633 Sfmt 6621 H:\WORK\COMM\020409\47033.000 HJUD1 PsN: 47033
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tural workers under potentially exploitative conditions, thereby driving down standards for workers in the agricultural industry. 

H2B: Undermining labor standards for temporary seasonal 

immigrant workers 

The Bush Administration also rushed to get new rules in place that undermine 

labor standards for temporary seasonal workers under the H2B visa program. As 

with the H2A rules, the final rules were issued in violation of the Bolten memo on 

December 19, 2008. And, as with the H2A rules, the Bush Administration allowed 

only 30 days—until January 18, 2009—for the new rules to take effect. 

Like the H2A rules, the new H2B rules eliminate the pre-hire certification process 

at DOL, instead allowing employers to self-attest that they need the temporary 

workers and that there are not enough able and qualified U.S. workers available 

to do the work. The role of state workforce agencies in reviewing employer claims 

with respect to their need for temporary workers and the unavailability of U.S. 

workers is eliminated. 

The rules also gut the requirement that H-2B workers be hired only into temporary, full-time jobs, thereby opening up many more U.S. workers to unfair competition for work. Under the prior regulations, DOL considered jobs that lasted up 

to ten months out of the year as ‘‘temporary.’’ The new regulations allow employers 

to bring in H2B workers for a ‘‘temporary’’ one-time need of up to three years. 

Under the new rules, employers experiencing a long-term need for a larger workforce could completely avoid the demands of the domestic labor market by serially 

employing H2B workers, on temporary visas, to meet this long-term need. This 

would drag down wages and working conditions for workers in the industry or region as a whole. 

The combination of self-attestation, the elimination of the state workforce agencies, and the broadened definition of ‘‘temporary’’ will further depress wages in the 

industries in which the H2B program operates, to the detriment of U.S. workers. 

And, because there is an endless supply of citizens of foreign countries willing to 

work in the United States, and these jobs are generally classified as unskilled, employers’’ access to that foreign labor supply means that employers have little or no 

economic incentive to meet the economic demands of U.S. workers seeking a better 

wage. The new H2B rules need to be rescinded. 

Erecting Obstacles to Workers Taking Family and Medical Leave 

On November 17, 2008—after the deadline set forth in the Bolten memo, but just 

in time for the regulations to take effect before the end of the Bush Administration—the Department of Labor issued final regulations under the Family and Medical Leave Act. The new rules make it more difficult for employees to take family 

and medical leave by erecting new hurdles and procedural roadblocks, and the rules 

open the door to inappropriate disclosure of information to employers by allowing 

them to have direct conversations with a worker’s private physician about the employee’s need for leave. The changes were opposed by women’s rights organizations, 

labor organizations, and others, but favored by the business community. The new 

FMLA rules also contain provisions implementing the FMLA amendments to the 

National Defense Authorization Act for FY 2008, Pub. L. 110–181, which provide 

for leave for military families to care for service members. Advocates generally supported the military leave provisions. 

Undermining Trucker and Highway Safety 

On November 19, 2008, the Department of Transportation issued final rules increasing the allowable driving hours for truck drivers from 10 consecutive hours to 

11, and shortening mandatory rest times between drives. Consumer groups and 

labor organizations oppose these rules because of their adverse impact on driver 

health and safety, and on highway safety. The rules issued by DOT on November 

19, 2008 are virtually identical to provisions that have twice been rejected by the 

U.S. Court of Appeals for the D.C. Circuit. The final rules took effect on January 

19, 2009—the day before President Obama took office. A petition for reconsideration 

of the rules, submitted by worker and consumer advocates, was denied by DOT before the Bush Administration left office. 

Weakening Safeguards Against Conflicts of Interest in Investment Advice 

On August 22, 2008—again in violation of the Bolten memo—the Department of 

Labor’s Employee Benefits Security Administration (EBSA) issued proposed rules 

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5 In addition to the massive expansion of the Form LM-2 described in the text above, in 2007 

DOL promulgated a major expansion to the LM-30 report, which union officers and employees 

must file, that dramatically expanded the number of individuals that must file the reports to 

include union volunteers, and that dramatically expanded the types of transactions that individuals must report. 72 Fed. Reg. 36106 (July 2, 2007). Also, in 2006, the Department published 

requirements for a new T-1 report for unions to file concerning ‘‘significant trusts in which they 

are interested.’’ 71 Fed. Reg. 57716 (Sept. 29, 2006). As with the prior version of this requirement, the new T-1 rule was struck down by the court. Undeterred, the Department promulgated 

another new T-1 rule in 2008, 73 Fed. Reg. 57412 (Oct. 1, 2008). 6 According to an unpublished study by Professor John Lund, the Office of Labor Management 

Standards (OLMS) spends approximately $2,700 per labor organization under its jurisdiction, 

while OSHA and the Wage and Hour Division spend $26 each per covered workplace. 7On February 2, 2009, the Office of the Federal Register posted a notice, to be published in 

the Federal Register on February 3, 2009, by the Department of Labor requesting comments 

on a proposed 60-day extension of the effective date of the new LM2/3 rules and seeking comments on the rule generally, including the merits of retaining or rescinding the rule. 

that allow for money managers to give conflicted investment advice to workers participating in individual retirement account plans such as 401(k)s, even if the money 

manager stands to profit from the advice. Labor organizations, senior citizen organizations, members of Congress and others strongly objected to the Department’s proposal out of concern that it opened the door to conflicts of interest by investment 

advisers. Notwithstanding these objections, EBSA proceeded to finalize the rule, 

which was sent to the Office of the Federal Register on the last business day of the 

Bush Administration and published on January 21, 2009—again in clear violation 

of the Bolten memo. 

Imposing New Reporting Burdens on Labor Organizations 

In stark contrast to the Bush Administration’s reticence to issue rules improving 

workers’ health, safety, wage and hour, or pension protections, the Department of 

Labor issued a myriad of rules requiring increased financial recordkeeping and reporting by labor organizations and union officers. During its tenure, the Bush Administration issued four major new rules imposing heavy reporting obligations on 

labor organizations and their officers 5 and at the same time increased resources for 

investigation and regulation of labor organizations.6

In 2003, the Bush Administration pushed through a major expansion of the annual financial reports that the largest labor organizations are required to file— 

called the Form LM-2. The new rules require unions to track and report their financial transactions in minute detail. This produces an avalanche of meaningless data 

at an enormous cost both to the labor organizations that must file the reports and 

to the union members whose dues pay for the new recordkeeping and accounting 

systems. The AFL-CIO’s report, for example, went from approximately 200 pages 

under the old form to approximately 800 pages under the Bush Administration’s 

new rule. 

Without studying whether the new forms actually provided workers with useful 

information, in May 2008, the Labor Department embarked on another round of 

LM-2 reforms, seeking even more detailed information from labor organizations. The 

new rules also proposed procedures for revoking the right of smaller unions to file 

a simplified financial report, if their report is delinquent or deficient. These small 

unions would then need to file the far-more complicated Form LM-2, which they are 

not set up to handle. Unions filed comments objecting to the proposed rule, but DOL 

proceeded to finalize the new rule, sending it to the Federal Register on the Friday 

before President Obama’s inauguration so that it would be published on January 21, 

2009—the first full day of President Obama’s term. The new rules take effect on 

February 20, 2009. If allowed to stand—which we hope they are not—the new rules 

will further increase the recordkeeping and reporting burden on labor organizations 

with no apparent benefit to workers.7

Removing Information from Contractors’ Payroll Records 

The Bush Administration also rushed through a rule that allows contractors covered under the Davis-Bacon Act and the Copeland Anti-Kickback Act to omit social 

security numbers and home addresses of workers on the weekly payroll reports 

these contractors are required to maintain and provide to the government. The deletion of this information from the payroll reports will make it harder for the government to verify the accuracy of the reports. The rule was proposed on October 20, 

2008—long after the June 1, 2008 deadline in the Bolten memo—and after a short 

30-day comment period, final rules were issued on December 19, 2008, to take effect 

on January 18, 2009. 

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Options for Addressing the Bush Administration’s Midnight Rules 

It is unfortunate, given the current economic crisis and the many pressing issues 

facing our country, the new Administration, and Congress, that time and resources 

will have to be spent dealing with the Bush Administration’s harmful midnight regulations—resources that should rightly be going toward the development of protective regulations. Fortunately both the Obama Administration and Congress have 

several options for dealing with rules that they find objectionable. 

In considering these options, it is important to look at each midnight rule to determine the best course of action for that particular rule. No one solution fits every 

situation. In some cases, the best solution is to revoke a midnight rule entirely. In 

other cases, the better course might be to retain the midnight rule but engage in 

rulemaking to improve upon its deficiencies. In addition, it is important that Congress and the Obama Administration communicate with each other and coordinate 

their efforts, in order to facilitate the Obama Administration’s efficient and prompt 

response to particular midnight rules of concern. 

Proposed rules that were not completed by the Bush Administration, such as the 

proposals to weaken Fair Labor Standards Act protections or the secret rule on risk 

assessment, are the easiest to address. The Obama Administration’s new Department of Labor can issue a notice in the Federal Register withdrawing the proposed 

rule in question. 

For rules that were issued in final form but have not yet taken effect, the Obama 

Administration, via a memorandum to agencies from Chief of Staff Rahm Emanuel 

and a followup memo from OMB Director Peter Orszag, has instructed agencies to 

consider extending the effective date of particular last-minute rules and taking public comments on whether to modify or repeal the rule. Agencies will need to justify 

their decisions to extend effective dates and to modify or repeal particular rules, but 

it is clear that they have legal authority to undertake such regulatory proceedings. 

Last-minute rules that have already taken effect are obviously the most problematic category of rules. The Obama Administration will need to quickly review these 

rules and undertake a new rulemaking to modify or repeal rules that it finds problematic. These rulemakings can be time-consuming and burdensome, and divert resources from other important agency priorities, such as proposing new rules to improve worker protections. 

Congress can assist the Obama Administration in dealing with these problematic 

midnight rules in a number of ways: 

• Congress can adopt a rider on the relevant appropriations bill blocking implementation of new rules that it finds objectionable, which would give the 

Obama Administration breathing space to reconsider, modify, or revoke the 

rules in question; 

• Congress can facilitate review of problematic rules by passing legislation authorizing the executive branch agencies to suspend immediately the effective 

dates of midnight rules (e.g., rules that violated the Bolten memo) that the 

Congress and/or the agencies find problematic; 

• Congress can disapprove any of the Bush Administration’s last-minute rules 

under the Congressional Review Act. 

In addition, Congress should appropriate sufficient funds to the executive branch 

agencies to enable them to both review and deal with the Bush Administration’s 

midnight rules and engage in new, protective rulemaking. Rulemaking can be a resource-intensive, time-consuming endeavor, and it is important that these agencies 

have the resources they need both to deal with the problems left by the Bush Administration and to move forward with protective regulations. 

Again, thank you for the opportunity to testify today. I would be happy to respond 

to any questions. 

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ATTACHMENT 


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Mr. COHEN. Thank you, Ms. Rhinehart. 

And now we would proceed with the testimony of Dr. de Rugy. 

Correct? 


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TESTIMONY OF VERONIQUE DE RUGY, Ph.D., SENIOR RESEARCH FELLOW, MERCATUS CENTER AT GEORGE MASON 

UNIVERSITY 

Ms. DE RUGY. Absolutely, very impressed. But over the years, I 

have learned to respond to whatever name I hear. 

Chairman Cohen, Ranking Member Franks and distinguished 

Members of the Subcommittee, it is an honor to appear before you 

today to discuss the problems of and solution to the midnight regulation phenomenon. 

I am a senior research fellow with the Mercatus Center, a nonpartisan university-based research, education and outreach organization affiliated with George Mason University. My colleagues and 

I have worked on this issue extensively, and I am concerned about 

the effects this phenomenon has on good governance. 

In his inaugural address, President Obama committed to accountable and pragmatic government. Unfortunately, at the end of 

every presidency, agencies trample on this value, as the issue of 

last-minute regulation. 

If Congress does not reform things and the process today, the 

end of the Obama administration will likely be no different in this 

regard than those that have preceded it. 

After all, in spite of efforts within the Bush administration to 

prevent an outburst of last-minute rules, little has changed since 

the frantic last days of the Clinton presidency. 

The Mercatus Center’s work over the years demonstrates that 

the midnight regulation phenomenon is systemic and crosses party 

lines. At the end of every Administration, Republican or Democrat, 

there is a dramatic spike in regulation. 

This spike is especially pronounced when the transition is to a 

President of the opposite party. 

The most common explanation in the literature for this phenomenon is the attempt by the Administration to extend its influence into the future. 

Knowing its successor will not share its policies or priorities, 

there is an incentive to write in stone as many of its policies as 

possible. 

There are two other reasons why midnight regulations are pernicious. 

First, after election day, a lame-duck President faces little accountability. He will never again stand for election and won’t really 

have to deal with Congress in the future. This lack of accountability frees the President and his Administration to enact regulations that previously had been politically impossible. 

Second and more importantly, the midnight regulation phenomenon dilutes oversight by the Office of Information and Regulatory Affairs. OIRA’s regulatory office exists to ensure that agencies have carefully considered alternative approaches to regulation, 

that they have correctly estimated the costs and benefits of these 

alternatives in order to find the most efficient course of action. 

By its nature, this type of reasoned economic oversight of proposed regulations requires time. Unfortunately, the torrent of regulations at the end of an Administration weakens this oversight. 

My colleague, Jerry Brito, and I found that in the first 7 years 

of the Bush administration, OIRA reviewed an average of seven 

210 

economically significant regulations per month. Over the last 3 

months, however, that number had doubled to 14. 

Moreover, while the number of regulations OIRA reviewed at the 

end of the presidential term, while it spiked, its staff and budgets 

remained constant. It means basically the time it has to review 

each regulation decreases. 

Another of my colleagues, Patrick McLaughlin, has actually put 

out a study that shows that that review time is slashed in two. 

To address this issue, we suggest a flexible cap on the number 

of regulations that an agency can submit to OIRA at any one time. 

This cap would be tied to resources available to OIRA, which could 

be increased, if necessary. 

The midnight period, however, also highlights persistent problems with OIRA oversight during the regular process. Since its creation, OIRA staff has been cut in two and the budget, in constant 

dollars, has shrunk by about a third. 

This downward trend hampers a President’s ability to effectively 

manage regulation, paperwork and interagency coordination. 

Any increase in staffing and spending will be useless unless Congress addresses a more fundamental issue. The ability of OIRA to 

carry out its mission varies both across agencies and across Administrations. 

Depending on the degree of latitude granted to the OMB director 

and the OIRA administrator, consistent management of the quality 

of cost-benefit analysis has been doubling consistently. 

For example, different agencies are given a pass on the quality 

of their regulatory analysis or on any application of that analysis 

for decision-making by a particular Administration. OMB is essentially told to back up in these cases. 

Commerce and the executive branch must give OIRA both the resources and the ability to hold agencies accountable for producing 

effective and cost-efficient rules. Ensuring that these principles 

apply during the midnight period when accountability is reduced is 

even more important. 

Finally, Congress should dedicate itself to writing clearer, more 

detailed and more definitive statutes that require sound analysis of 

regulation. In this way, Congress would better exercise the policymaking authority entrusted to it by the Constitution. 

Thank you. 

[The prepared statement of Dr. de Rugy follows:] 

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PREPARED STATEMENT OF VERONIQUE DE RUGY


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Mr. COHEN. Thank you, Doctor. I appreciate your finishing before 

the red light and for your testimony. 

Professor Abramowicz? 

TESTIMONY OF MICHAEL ABRAMOWICZ, PROFESSOR, 

GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 

Mr. ABRAMOWICZ. Thank you, Mr. Chairman and Members of the 

Subcommittee. 

In the first part of my remarks, I would like to focus on potentially negative and unforeseen consequences to legislative deprecation of midnight rules. I will then turn to a brief analysis of some 

of the problems that may arise from H.R. 34, the current proposal 

to allow an incoming Administration to disapprove of midnight 

rules, being passed. 

Finally, I will turn to a broader discussion of the administrative 

process and how it might be strengthened to reduce idiosyncratic 

and unadvised executive branch decision-making, without turning 

a President into a 15/16ths President, prohibited from exercising 

the full power of the executive branch during the so-called lame 

duck period. 

Proposals to deprecate midnight rules could make an outgoing 

presidential Administration less likely to pass rules simply designed to slow down the incoming Administration, but it is doubtful 

that enactment of such proposals would help a new Administration 

overall. 

It takes some time for an agency to become fully staffed and then 

to assess its priorities. 

Midnight rulemaking on relatively routine matters may be helpful to the new Administration, allowing smaller issues to be resolved, thus permitting focus on future challenges. 

Once deprived of their ability to have the final say on whether 

regulations are issued, administrative officials, near the end of a 

term, may feel that they will not receive credit for any rulemaking 

initiatives that would come into effect only should the next Administration permit them. 

Moreover, they might worry that disapproval could be embarrassing. As a result, they are likely to hold off even on many regulations that the new Administration would not disapprove. 

This will lead to a buildup of many low profile regulatory initiatives, slowing the startup time for the new Administration. 

The passage of legislation deprecating midnight rules might not 

even be effective in suppressing the issuance of controversial regulations. It might simply push the enactment of such regulations 90 

days earlier to just before the presidential election. This has hazards on its own. 

Decisions on whether to complete high profile regulatory initiatives that have been under review would likely depend increasingly 

on partisan political concerns. 

Of course, the vast majority of regulations would fly under the 

radar of presidential politics. This, however, merely emphasizes the 

futility of any effort to eliminate the incentive that Administrations 

have to complete rulemaking initiatives that they have begun. 

H.R. 34 leaves many unanswered questions. Some problems with 

specific language of H.R. 34 should be easily fixable. 

237 

For example, the current definition of a midnight rule applies to 

‘‘a rule adopted by an agency within the final 90 days a President 

serves in office.’’ Read literally, this would appear to apply regardless of the reason that President leaves office, including if he or she 

dies or resigns. 

Other problems might not be fixed so easily. The bill does not 

make clear whether a President’s decision to make an exception to 

the midnight rulemaking ban or a subsequent agency’s decision 

whether to disapprove of a regulation is subject to judicial review. 

A cornerstone of our administrative process is the requirement of 

reasoned decision-making and leaving these decisions entirely unchecked would be inconsistent with this requirement. Excessively 

intrusive judicial review, on the other hand, could undermine the 

effectiveness of its reform. 

Midnight rulemaking can be seen as problematic not so much in 

and of itself, but it is problematic in what it signals more generally. 

Because midnight regulations occur so near the transition may 

highlight the fact that different Administrations are likely to pursue different objectives. 

Our administrative process can be seen, in part, as a set of tools 

that ensures that much of the regulatory state’s functioning will 

operate with some consistency, regardless of the occupants of the 

Oval Office. 

Because agency regulations must go through notice and comment, agency officials must prioritize reforms. We do not end up 

with one version of the Code of Federal Regulations for Democratic 

administrations and another version for Republican administrations. 

Even if one believes that administrative agencies have too much 

leeway to move policies over to their ideological priorities, disallowing midnight regulations is a crude response. It is akin to proposals to enact a moratorium on all rulemaking. 

Other regulatory tools can help achieve the beneficial ends of 

regulatory continuity without artificially freezing the administrative process. For example, the continued use and improvement of 

cost-benefit analysis and other forms of regulatory review can reduce the risk that regulations will depend on ideology or caprice, 

not only during the midnight period, but during the entirety of a 

presidential Administration. 

Thank you again. 

[The prepared statement of Mr. Abramowicz follows:] 

PREPARED STATEMENT OF MICHAEL ABRAMOWICZ

Thank you, Mr. Chairman and Ranking Member Franks. I appreciate this opportunity to testify before the Subcommittee on Commercial and Administrative Law 

on the topic ‘‘Midnight Rulemaking: Shedding Some Light.’’ I am pleased that the 

Subcommittee has chosen this important topic for its first hearing of the 111th Congress, and more generally by the interest of the Subcommittee in administrative law 

and regulatory practice. 

In the first part of my remarks, I would like to focus on potentially negative and 

unforeseen consequences to legislative deprecation of midnight rules. I will then 

turn to an analysis of some of the problems that may arise should H.R. 34, a current 

proposal to allow an incoming administration to disapprove of midnight rules, be 

passed. Finally, I will turn to a broader discussion of the administrative process and 

how it might be strengthened to reduce idiosyncratic and unadvised executive 

branch decisionmaking without aggravating the ‘‘lame duck’’ status of an outgoing 

President. 

238 

1. Proposals to deprecate midnight rules in general 

Under our existing administrative system, midnight regulations passed by one administration become law absent congressional action under the same terms as regulations passed at any other time in a Presidential term. There are a number of ways 

that this might be changed. One could imagine a statute that simply disabled a 

President from engaging in rulemaking in the final period before a regularly scheduled inauguration of a new President. Alternatively, a statute might provide for increased judicial scrutiny of midnight rules, for example by requiring an increased 

burden of persuasion on an outgoing administration in the process of judicial review. 

Such proposals might have certain benefits. For example, they might make an 

outgoing Presidential administration less likely to pass rules simply designed to 

slow down the incoming administration, or to bog the incoming administration down 

in resource-consuming litigation. Nonetheless, there are significant drawbacks to 

any legislative efforts that would convert a President into, for administrative law 

purposes, a 15/16ths President, an individual authorized to exercise the customary 

powers of the executive branch except during the last three months of the Presidency. Moreover, it is difficult to justify the creation of a 15/16ths Presidency based 

on general concerns about the orderly process of the administrative state. 

Even the claim that reform would deter an outgoing administration from 

hamstringing an incoming administration is questionable. Anne Joseph O’Connell 

has shown that ‘‘Presidents usually have started fewer, not more, rules through notice-and-comment rulemaking in the first year of their terms than in later years.’’ 

While it is possible that some of this startup time is attributable to agencies’ digging 

out from midnight rulemaking of the prior administration, this is likely to account 

for only a small percentage of the increase. Rather, it takes some time for an agency 

to become fully staffed and then to assess its priorities. Given that there is some 

startup time for a new Presidential administration to plan its most important objectives, midnight rulemaking on relatively routine matters may be helpful to the new 

administration, allowing smaller issues to be resolved, thus permitting focus on future challenges. 

It is true that even with reforms deprecating midnight rules, administrative agencies would still be permitted to issue regulations, for example with delayed effective 

dates, or at least to write draft regulations that the next administration could consider. But once deprived of their ability to have the final say on whether regulations 

are issued, administrative officials may feel that they will not receive credit for any 

rulemaking initiatives with delayed effectiveness, and moreover they might worry 

that disapproval could be embarrassing. As a result, they are likely to hold off even 

on many regulations that the new administration would not disapprove. This will 

lead to a buildup of many low-profile regulatory initiatives that must be shepherded 

through the publication process, slowing the startup time for the new administration. 

There is, moreover, good reason to think that the vast majority of regulations 

issued in the midnight period are relatively routine. In the last three months of the 

Clinton Administration, a record 27,000 pages were published in the Federal Register, but in similar periods during the administration, 17,000 pages were published. 

This is obviously a notable increase, but many of the 17,000 pages that ordinarily 

would be published during that period presumably contained relatively routine 

rules. Even on the 10,000 additional pages of rulemaking, only a relatively small 

number of regulations (such as the ergonomics and arsenic regulations) were especially politically controversial. Much of the 10,000 pages is probably attributable 

simply to procrastination, or to a desire by agency officials to finish work that they 

have begun. If some portion of the 27,000 pages were simply not issued in the first 

place, there would have been a great deal new work for the incoming administration. 

One concern about midnight rulemaking is that outgoing agency officials may 

issue regulations specifically because they want to force the new administration to 

spend time undoing these regulations. But there are other ways that an outgoing 

administration could undermine a new administration. If new laws deprecate midnight rules, an outgoing administration might take an opposite approach, essentially 

ceasing work on regulations, including ones that are relatively pressing because, for 

example, of deadlines imposed by Congress or by the courts. These agencies might 

even use the legislation restricting midnight regulations as an excuse. Rather than 

simply giving a new administration a menu of regulations to either allow or disapprove, the outgoing administration might decide to let the new administration do 

the work of bringing regulations through the regulatory process. Again, this could 

create a backlog that could hamper a new administration as much as or even more 

than the issuance of midnight regulations, only a relatively small number of which 

239 

a new administration is likely to invest resources in undoing. Another strategy by 

an outgoing administration would be to focus its resources on initiating politically 

controversial adjudications. Because an agency is free to develop policy in both adjudication and rulemaking, this can sometimes be an effective means of moving policy, 

and certainly can tie up agency resources in the next Administration. 

The passage of legislation deprecating midnight rules might not even be effective 

in suppressing the issuance of politically controversial regulations. It might simply 

push the enactment of such regulations 90 days earlier, to just before the Presidential election. This has hazards of its own. Decisions on whether to complete highprofile regulatory initiatives that have been under review would likely depend increasingly on partisan political concerns. Meanwhile, although it is useful for the 

electorate to focus to some extent on administrative issues, a quadrennial period of 

intense October rulemaking might prove to be an undue distraction from the broader themes of presidential campaigns. 

Of course, the vast majority of regulations would fly under the radar of Presidential politics, without affecting campaigns one way or the other. This, however, 

merely emphasizes the futility of any efforts to deprecate midnight rulemaking. 

There is likely still to be a bump in administrative activity, just a few months earlier. To be sure, the total volume of rulemaking in an administration might be 

slightly lower, for there will only be a guarantee of 15/16ths the time to engage in 

rulemaking. But past moratoria on regulation have proven excessively crude. Perhaps the bump will be a little bit less, with a couple of controversial and high-profile 

initiatives abandoned every four years. But even if we assume this to be a benefit, 

it is a small part of the broader regulatory picture. 

Some may argue that an early deadline just before the election would in fact have 

a broader effect on rulemaking, and that there will not be a considerable increase 

in rulemaking activity just before an election. One argument for this is that many 

midnight rules may be enacted only because of the relative lack of accountability 

of the executive during the midnight period. We should be skeptical, however, that 

the relative difference in degrees of accountability across time period makes a difference on the vast majority of rulemaking issues. Moreover, scrutinizing different 

variations of the claim that midnight rulemaking should be deprecated because of 

accountability concerns helps reveal weaknesses with this claim. 

One variation defines accountability as electoral accountability. There is a vein of 

administrative law scholarship, particularly the breakthrough work of Jerry 

Mashaw, that concludes that the executive branch is the most politically accountable branch, in part because the electorate is relatively more aware of actions of the 

President than actions of individual members of Congress. One might accept this 

account and then argue that accountability varies across time. The longer the period 

to an election, the smaller the degree of accountability. Nonetheless, it is hazardous 

to try to change administrative law based on changing degrees of accountability. 

Suppose, for example, that we consider regulations finalized not in January 2009, 

but in January 2005. In both periods, George W. Bush would never face re-election 

again, there would be two years for the public to forget about rules enacted in that 

period before a House electoral cycle, and there would be four years before another 

Presidential election. If deprecation of regulations is to be justified by electoral accountability, then perhaps we should extend it to a period just after a President has 

been re-elected. To be on the safe side, perhaps we should disable regulation in the 

entire second term of a Presidency. Alternatively, if the argument is that the President’s power should be weakened after a public repudiation of his or her policies, 

perhaps we should have a system that diminishes presidential power if the President’s party fares poorly in midterm congressional elections. These are, of course, 

facetious suggestions, but they are enough to show that the fact that a particular 

President will not again face the electorate cannot be a sufficient basis for making 

regulations disapprovable. 

Another variation of this argument focuses on accountability to Congress and 

more broadly on the separation of powers. One might argue, for example, that when 

the administration is not near its end, the President will face retaliation from acting 

in a way that Congress would not approve, for example in the form of increased congressional oversight of administrative agencies. Game theorists might say that the 

President and Congress are engaged in a multi-period cooperation game, but the 

midnight time frame presents a ‘‘final period’’ problem. There is an incentive to defect from a regime of cooperation in the last period. And so, the President may care 

less about accommodating congressional concerns in this final period. 

This dynamic may occur to some extent, but it is difficult to determine whether 

reduced congressional accountability for a brief period of time is necessarily bad. For 

example, as Jack Beerman has pointed out, midnight regulations sometimes may 

consist of initiatives that otherwise would be blocked by special interests. Similarly, 

240 

such regulations may consist of moderately politically unpopular changes that are 

nonetheless beneficial. Admittedly, sometimes regulations are unpopular for good 

reason. It is difficult in the abstract to determine what is the optimal degree of special interest influence on legislation and ideally how much the President and administrators should pursue what they believe is best rather than what the less informed 

public will support. But it certainly is not clear that having a few months in which 

the President has a freer hand will generally lead to worse decisions rather than 

better ones, let alone that essentially disabling the President for a period of time 

will improve decisionmaking. 

A counterargument is that our government is a system of checks and balances, 

and that the President ought to be most restrained when such checks and balances 

are relatively impotent. But pursuing the goal of adjusting presidential power based 

on the strength of checks and balances would seem to suggest a range of radical 

policy changes. For example, one might imagine a regulatory regime that made it 

harder for the President to act when Congress is of the same party as the President. 

The judiciary might apply a lower standard of review to administrative action when 

government is divided, on the theory that congressional review will be more active 

and may thus serve as a substitute for judicial review. The ‘‘midnight’’ period cannot 

be singled out as the only period in which checks and balances are unlikely to be 

effective in limiting presidential authority. 

2. Problems with H.R. 34 

A current bill to address the alleged dangers of midnight rulemaking is H.R. 34. 

Under the bill, ‘‘a midnight rule shall not take effect until 90 days after the agency 

head is appointed by the new President.’’ One danger of deprecating midnight rules 

through legislative action is that the legislation may present unanticipated interpretive challenges. All legislation presents this danger to some extent, but the costs of 

ambiguity are particularly high here, because there may be uncertainty concerning 

the validity of large numbers of regulations, and private parties may face sanctions 

for failing to comply both with the old regime and with the new one. 

Some problems with the language of H.R. 34 should be easily fixable. For example, the current definition of a ‘‘midnight rule’’ applies to ‘‘a rule adopted by an 

agency within the final 90 days a President serves in office.’’ This would appear to 

apply regardless of the reason that a President leaves office, including if he or she 

dies or resigns. Another provision, governing exceptions to the statute, refers to a 

‘‘President serving his final term.’’ This definition is only a little better, as it does 

not make unmistakable whether a President who has been voted out of office after 

one term, but could run for another term later, should be counted as ‘‘serving his 

final term.’’ A better definition would make clear that the legislation applies to 

every President who either has not run for re-election or has been voted out of office, in the 90-day period preceding the regularly scheduled inauguration of the next 

President. The statute also ideally would make clear that it would apply only once 

some official determination is made of who has won the Presidential election. 

An additional interpretive problem arises from the exceptions provision, what 

would become § 555a(b)(2). The President is permitted to order that a midnight rule 

should take effect under several identified conditions. This raises interesting questions. Is this order subject to judicial review? Under what standard? If the President 

does certify a midnight rule so that it does take effect, can it still be disapproved 

by the new agency head? 

The disapproval process itself presents interpretive questions. Can an agency 

head in a multimember agency act alone to disapprove of a regulation, even when 

the various members of the agency ordinarily would need to vote to take agency action? What standard of judicial review, if any, applies to an action of disapproval? 

Is disapproval a form of administrative action that requires no justification whatsoever? The Administrative Procedure Act, at least in theory, allows challenges to be 

brought based on both agency action and inaction, so even if we count an agency’s 

issuance of a regulation and then disapproval thereof collectively as inaction, it 

would appear that there might be some ground for judicial review. This is especially 

true when an agency is issuing regulations expressly required by Congress or the 

courts by a particular date. Even if a failure to issue regulations in the first place 

were effectively unenforceable, a decision to disapprove mandated regulations might 

be legally questionable. 

Finally, the retroactivity provision itself presents interesting issues. For example, 

can liability attach to a private party that has complied with a new regulation after 

its effective date but not with the preexisting regulation? There would appear to be 

strong reasons for providing a safe harbor to a private party that has dutifully followed the new regulatory regime, even if policy should subsequently revert to the 

241 

old regulations. This is especially so where regulations have criminal consequences, 

given the constitutional proscription of ex post facto laws and bills of attainder. Another peculiarity of the retroactivity provision is that President Bush alone would 

be unable to take advantage of the exceptions provision, because the bill was not 

signed into law during his Presidential term. Does there thus remain in the retroactivity period any exception for regulations that may be necessary, for example because of an imminent threat to health or safety, if not so certified by the President? 

These are, of course, only some interpretive issues, and doubtless others will 

arise. At the same time, we can expect constitutional challenges to the creation of 

a 15/16ths Presidency, and considerable uncertainty among private parties in diverse circumstances regarding not merely some provision of a particular regulation, 

but whether an entire set of regulations is valid. Even if one views the 15/16ths 

Presidency as beneficial, one might think it would be better to allow Congress and 

the agencies to use ordinary procedures to undo regulatory initiatives that they dislike than to confront the many complications that would result should this statute 

become law. This is especially so for regulations passed at the end of President 

Bush’s Administration. Because the political branches today are all of the same 

party, there is the least need for a crude and automatic mechanism to undo the 

Bush Administration’s last rulemakings. 

3. Administrative reform with a full-term presidency 

The existence of problems in any attempt to deprecate midnight rulemakings does 

not mean that midnight rulemakings themselves are without their problems. Midnight rulemaking, however, can be seen as problematic not so much in and of itself 

but as problematic in what it signals more generally. Because midnight regulations 

occur so near the transition, they highlight the fact that different administrations 

are likely to pursue different objectives. Some may be inclined to accept this as democracy in action, and surely even in a hypothetical ideally functioning democracy, 

policy would change from administration to administration in response to the evolution of voters’ views. 

But the changes in policy have historically been relatively large in comparison to 

any underlying changes in long-term popular views about appropriate regulatory 

policy. It is possible to see this not as a virtue of the democratic process, but as 

an unfortunate symptom of its crudeness. On this view, an ideal administrative system, while allowing each new administration some discretion, would also seek to 

constrain executive action so that the difference in regulatory outputs from one administration to another is minimized. And indeed, our administrative process can 

be seen as a tool that ensures that much of the regulatory state’s administrative 

functioning will operate more or less the same regardless of the incumbent of the 

Oval Office. 

The importance of this can be seen by focusing on the few areas of administrative 

practice in which the President has the power to act simply by issuing Executive 

Orders, without public participation or notice-and-comment of any kind. In some of 

these areas, policy lurches from one ideological position to another as soon as the 

new President is sworn into office. One day, we have a restriction on abortion funding, and the next we do not, until the White House switches back to the other party. 

Yet it is remarkable how few areas of policy operate this way. We do not switch 

from a market-oriented health care system to a government-operated one, or between high emissions limits and low emissions limits the moment a new President 

comes into power. The administrative process moves slowly and consistently. Like 

the judicial doctrine of stare decisis, the existing regulatory system ensures that policy moves relatively slowly. The policies in place at any given time are some compromise among the varying ideological views of administrations over the previous 

several decades. 

Why is this? Why does an incoming administration not simply gut all of the regulations from its predecessors that it dislikes in favor of its own preferred administrative approach? Agencies cannot overturn statutory commands, but that is only a 

partial explanation, given the wide variety of possible approaches that statutes 

allow for, especially in our age of Chevron deference to administrative determinations. Rather, the answer is that changing the law is time-consuming. To issue regulations, an agency must go through the notice-and-comment process, and to pass 

muster under the ‘‘hard look’’ doctrine, it must provide at least a reasonable response to those who disagree with its approaches. This process ultimately will allow 

an agency to accomplish virtually anything clearly consistent with statutory requirements, but the process is sufficiently cumbersome that an agency faces real tradeoffs. 

242 

Some critics have therefore decried the administrative process as ‘‘ossified.’’ Perhaps. But if requirements of notice-and-comment decisionmaking and the institution 

of hard look review were eliminated altogether, then we could expect regulation to 

veer from one extreme to another with a change in presidential administrations, in 

the same way that we seen on the small handful of issues governed by Executive 

Orders. In effect, there would be two copies of the Code of Federal Regulations: one 

for when a Democrat was in power and one for when a Republican was in power, 

with each President perhaps picking some regulations from the other team when 

taking office, in the same way that a President might pick one or more Cabinet 

members from the opposite political party today. 

The existing system of rulemaking avoids this, encouraging incremental reform. 

The head of an administrative agency has a budget to allocate to different priorities. 

Sometimes, an administrative agency head might pursue a relatively radical course 

in comparison to the preexisting regime, but relatively large changes require more 

paperwork, because there are more plausible objections to them. And so, in a typical 

administration, there may be some large-scale changes and a number of smallerscale changes in the regulatory framework, but the overall framework typically 

looks more or less the same at the end of the administration as at the beginning. 

The system of hard look review ensures that even as the President exercises the 

full constitutional power of his office, the administrative state will move only to 

some degree in the direction of his or her preferences. For more radical reform without the burdens associated with notice-and-comment decisionmaking, the President 

must persuade Congress to act. 

A regulatory regime creating a 15/16ths Presidency would constrain the administration still further, ensuring even greater levels of administrative continuity. It is 

impossible to conclude in the abstract whether our administrative system allows a 

single administration to effect too much change or too little. But even if the answer 

is that administrative agencies have too much leeway to move policies over to their 

ideological priorities, disallowing midnight regulations is a crude response. Such an 

approach covers nonideological regulations along with politically salient ones, and 

it artificially freezes policy in favor of the status quo. It is easy to see this by imagining more drastic versions of the midnight rule, such as a rule that would invalidate rulemaking in the last year or last two years of a Presidential administration. 

Only those who are so distrustful of government that they are willing to void regulations sight unseen should be in favor of such crude approaches. 

There are other regulatory tools that can help achieve the beneficial ends of regulatory continuity without artificially freezing the administrative process. For example, recent Supreme Court efforts to prevent agencies from skirting the notice-andcomment process are likely to help promote greater consistency in administrative 

policy from one administration to another, and any legislative efforts in that direction could help as well. Any reforms that would increase the weight that administrative agencies must give to scientific consensus similarly could improve regulatory 

consistency and outcomes. In short, there are ways to avoid the dangers of midnight 

rulemaking—the prospect of ideological and arbitrary decisionmaking—all day long. 

I will conclude by highlighting the one area of administrative reform that is perhaps most likely to have these salutary consequences. The continued use and improvement of cost-benefit analysis and other forms of regulatory review can help ensure that administrative outcomes depend on a systematic tallying of the effects of 

regulations, reducing the risk that midnight regulations and others will depend on 

ideology or caprice. Some legal scholars have attacked President Obama’s nominee 

to head the Office of Information and Regulatory Affairs in part because of his past 

support for cost-benefit analysis. Yet many of these scholars’ critiques of cost-benefit 

analysis could equally be translated into proposed improvements to the methodology. Both Congress and the Administration could greatly advance the goals underlying the midnight rulemaking reform by strengthening both the framework of costbenefit analysis and the institutional resources that OIRA has to review agencies’ 

actions to ensure their consistency with the Administration’s objectives and with our 

broader regulatory history and tradition. 

Thank you again. 

Mr. COHEN. Thank you, Professor Abramowicz. 

And, Dr. Copeland, you are recognized. 

243 

TESTIMONY OF CURTIS W. COPELAND, Ph.D., SPECIALIST IN 

AMERICAN NATIONAL GOVERNMENT, GOVERNMENT AND FINANCE DIVISION, CONGRESSIONAL RESEARCH SERVICE 

Mr. COPELAND. Thank you. Mr. Chairman, Members of the Subcommittee, thank you for inviting me here today to discuss midnight rulemaking. 

As you mentioned in your opening statement, in May 2008, 

President Bush’s chief of staff, Joshua Bolton, sent a memorandum 

to Federal agencies telling them to issue the Administration’s final 

regulations by November 1. 

He said this deadline was being established to avoid the tendency of issuing midnight rules just before a President leaves office. 

Data from GAO and from OMB indicate that while the level of 

regulatory activity increased significantly in the final months of the 

Bush administration, most of those rules were published early 

enough so that they had taken effect by the time President Obama 

took office on January 20. This includes the four rules that Mr. 

Kennedy mentioned in his testimony, the respite rule that Mr. 

Watt mentioned, the H2A rule that Ms. Rhinehart mentioned. 

However, other final rules of concern had been published in the 

Federal Register, but had not taken effect, and this includes the investment advice rule that Ms. Rhinehart mentioned and some proposed rules that were never published as final rules. 

Both the Obama administration and Congress have a number of 

options on how to address these midnight regulations and the effectiveness of those options depends, in part, on how far those rules 

had progressed in the rulemaking process. 

One presidential approach has already been undertaken. As has 

been mentioned, on the afternoon that President Obama took office, 

White House Chief of Staff Rahm Emanuel issued a memorandum 

to Federal agencies telling them to, one, not send new rules to the 

Federal Register; two, to withdraw any rules that had been sent, 

but that had not been published; and, three, consider extending for 

60 days the effective dates of rules that had been published, but 

that had not taken effect. 

This memorandum continued a long tradition of regulatory moratoria at the start of a presidency. However, the Emanuel memorandum does not address any of the controversial midnight regulations that have already taken effect. 

To stop or alter those rules, or even just to change their effective 

dates, the Obama administration will have to go through the notice 

and comment rulemaking process. While that process can be shortened by the agencies for good cause, courts have indicated that legitimate reasons must accompany such actions. 

On the other hand, for any rule that has been proposed, but not 

published as a final rule, the Obama administration can simply 

publish a notice of withdrawal in the Federal Register to prevent 

any future action on the rule. 

Congress also has several options to stop midnight rules. For example, the Congressional Review Act, or CRA, was enacted in 1996 

to give Congress more control over agency rulemaking by establishing a set of fast-track disapproval procedures. 

244 

However, because any President is likely to veto CRA resolutions 

disapproving one of his own agency’s rules, the act has been used 

only once in the last 13 years. 

In fact, Congress may only be able to use the CRA after a presidential transition in which the party in control of the White House 

changes and the new President is of the same party as the majority 

in Congress—the very conditions that currently exist. 

Under the CRA’s carryover provisions, any final rule that was 

issued by the Bush administration after May 15, 2008 can now be 

the subject of a resolution of disapproval. 

According to GAO’s database, this timeframe includes about 

1,800 Bush administration rules, including about 700 significant or 

substantive rules. 

Another congressional option is to include a provision in the appropriations act prohibiting the use of funds to make a proposed 

rule final, or to prohibit the implementation or enforcement of rules 

that have already taken effect. 

Although the CRA has been used only one time, Congress has included dozens of these types of restrictions in Appropriations Acts 

for at least the last 10 years. However, unlike CRA resolutions of 

disapproval, these appropriations restrictions do not eliminate the 

underlying rule, are typically only in effect for the time period covered by the appropriation, and have other potential limitations. 

A third hybrid approach is for Congress to give the Obama administration new authority to stop midnight rules. H.R. 34, as introduced by Representative Nadler, is an example of this approach. 

However, to have the desired effect, key terms like ‘‘rule,’’ ‘‘adopted,’’ and ‘‘agency head’’ will need to be carefully defined. 

Also, Congress will have to consider the balance of power ramifications of giving the President or executive branch officials power 

that it had previously reserved only to itself. 

Mr. Chairman, that completes my testimony. I would be happy 

to answer any questions. 

[The prepared statement of Dr. Copeland follows:] 

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PREPARED STATEMENT OF CURTIS W. COPELAND


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Mr. COHEN. Thank you, Dr. Copeland. And I appreciate each of 

the members of the panel for their attendance and their remarks. 

We now will have an opportunity for questioning, and I will recognize myself for questioning. 

The first is for Dr. Bass. The list of 25 troublesome midnight regulations listed in your testimony, which do you believe are the most 

egregious and should be addressed by Congress and/or the new Administration? 

Mr. BASS. Of the 25, all 25. That is why we listed them. This is 

an example of the problem that we are starting to see more of, 

which is everyone wants the top one or two. 

What was so surprising about the Bush activity at the end of the 

Administration was the wealth of these rules. You heard Dr. 

Copeland talk about the numbers. It was quite a large number that 

you had mentioned that are out there. 

These 25, most all of these are now effective, minus two of them. 

It seems to me there is no one-size-fits-all solution for all of these. 

At this stage, we are going to have to make sure that Congress 

and the Obama administration work in a coordinated fashion to resolve rule-by-rule how to deal with these. 

Mr. COHEN. And when you say those 25 are troublesome, are you 

talking about procedure, as well as substance? 

Mr. BASS. A mixture of both. There were some—Mr. Kennedy described some rushed examples, like on the endangered species. I 

think there are others. 

For example, we may all disagree on the HHS health care provider conscience rule. We may have very different values about it. 

But what was striking about the process is the OMB review of the 

rule, which is usually measured in weeks or months, was done in 

hours. 

And what that meant is that agencies like the EEOC that normally would comment on a rule didn’t get a chance to even comment on the rule itself. That means that it isn’t a violation of law, 

it is a violation of process of good rulemaking. 

That is what causes the problem with many of these. 

Mr. COHEN. You mentioned that many of the Bush midnight regulations were favors to special interests. 

Mr. BASS. Yes. 

Mr. COHEN. Which regulations were you referring to and which 

special interests were the primary beneficiaries of Bush midnight 

rules? 

For example, Mr. William Wichterman, a former lobbyist for the 

NFL, worked in this capacity at the White House Office of Public 

Liaison on a controversial midnight regulation dealing with the implementation of the Internet gambling law. 

Is that one of the issues that you raised in your remarks that 

troubled you? 

Mr. BASS. We did not specifically raise that, but that would be 

an example of the kind of thing we are talking about. 

There are really three types of issues. One is the influence of 

money and politics, as you are suggesting. There is uncertainty 

when there is opacity with many of these rules about who is getting the best deal out of this. 

262 

The second is industry-wide. Mr. Kennedy talked about the 

mountaintop mining as a result that services a particular industry. 

That is another type of concern. 

And then I think the third kind of issue that is at play here is 

simply the notion of a broader antiregulatory/deregulatory agenda. 

And there is some irony that the Bush administration—we all 

know the Bush administration was never friendly to regulation, 

and yet they chose to use the regulatory process as the vehicle for 

achieving much of the policy and priorities, which was deregulatory 

in the last stages of its Administration. 

Mr. COHEN. Professor Abramowicz, let me ask you a question. 

You had mentioned a 15/16th President. I presume you are assuming two terms and breaking it into half years or is that just kind 

of a—— 

Mr. ABRAMOWICZ. I was assuming, if I am not wrong, but I was 

assuming if we had a 3-month period, 3 months is a fourth of a 

year. That is where the 3-month period would be 1/16th of a presidential term. So I was actually assuming a 4-year term. 

Of course, I recognize that the President will continue to exercise 

the powers of the office even in that last 1/16th beyond the executive branch. The concern is diminishing the powers or potentially 

even essentially eliminating them within that sphere of influence. 

Mr. COHEN. You said that you were afraid that maybe some folks 

would be embarrassed to publish last-minute regulations for fear 

they would be overturned. 

Can you cite me an example of a politician who has been embarrassed by something they wanted to do? 

Mr. ABRAMOWICZ. That is a good point, Mr. Chairman. I think 

that it is still possible. On many things that fly below the radar, 

officials in these agencies, who are not necessarily people who are 

running for elective office, might be concerned and might hold back 

on progressing out of concern that they might look bad if the regulations were disapproved. 

Mr. COHEN. And from your testimony, you see this as a bipartisan problem that you have seen in—— 

Mr. ABRAMOWICZ. Yes. Midnight regulations have occurred in Republican and Democratic administrations alike. 

Mr. COHEN. Some people wonder why the interest organizations 

are not challenging each individual rule under the Administrative 

Procedure Act. 

Are these midnight regulations difficult to challenge under the 

Administrative Procedure Act and, therefore, congressional action 

might be warranted to give a more efficient process for challenge? 

Mr. ABRAMOWICZ. I don’t think so, Mr. Chairman. I think we do 

have an ordinary litigation process in which one can raise procedural and substantive objections to regulations. 

And indeed, if, in fact, a regulation has not gone through the customary review processes, if, in fact, there had been completes that 

had been completely ignored, as, for example, Mr. Kennedy suggested has happened, that should considerably weaken the case of 

the agency if it subsequently attempts to defend the rule in court. 

If there is litigation against the agency challenging a particular 

rule, if the agency simply hasn’t dotted its Is and crossed its Ts by 

responding to comments, then under the general hard look doctrine 

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that the courts apply in these circumstances, the rule probably 

would be struck down by the courts in any event. 

So it is true certainly that Administrations may have a temptation to take shortcuts at the end of an Administration, but in doing 

so, they take the risk that the regulations will not be durable, in 

any event, because they will not survive judicial review. 

Mr. COHEN. Thank you, Professor. My time has expired. 

Mr. Franks? 

Mr. FRANKS. Mr. Chairman, I will be incredibly brief, and perhaps I could ask Professor Abramowicz for a concise answer. 

I agree with your testimony. Can you give us what you would 

consider the key constitutional and prudential prudent limits on 

the degree to which Congress could proscribe a President from engaging in end-of-term rulemaking and what could be done, in your 

mind, that would be within the constitutional constraints? 

Mr. ABRAMOWICZ. That is an excellent question. Certainly, some 

of the suggestions that Dr. de Rugy suggested, such as increasing 

funding of OIRA, clearly, within congressional prerogative, potentially even within administrative executive prerogative at the end 

of administration. That would certainly be a prudent thing to do. 

Your question, while requesting a brief response, brings up broad 

issues of a unitary executive, a very controversial area of constitutional law. Those who believe in a unitary executive might argue 

that some curtailment of the midnight regulation power could be 

constitutionally problematic. 

Mr. FRANKS. Thank you, Mr. Chairman. And I would just say 

you done good here for your first shot at the thing. 

Mr. COHEN. Thank you, sir. I appreciate the compliment, and I 

look forward to working with you and on this issue in a bipartisan 

manner, because it is the Chair’s opinion, as we said in the opening 

statement, that this affects all Administrations. 

It is systemic, that folks want to get done what they can get done 

and sometimes Parkinson’s law is in effect and the time and work 

and all those things come together. 

I would like to thank all our witnesses for their testimony today. 

Without objection, Members will have 5 legislative days to submit any additional written questions, which we will forward to the 

witnesses and ask that you answer promptly as you can, and they 

will be made a part of the record. 

Without objection, the record will remain open for 5 legislative 

days for the submission of any other additional material. 

Again, I thank everyone for their time and patience, particularly 

our Ranking Member. 

This hearing of the Subcommittee on Commercial and Administrative Law is adjourned. 

[Whereupon, at 12:49 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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PREPARED STATEMENT OF DAVID M. MASON, VISITING SENIOR FELLOW, THE HERITAGE FOUNDATION, SUBMITTED BY THE HONORABLE TRENT FRANKS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA, AND RANKING MEMBER, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW


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