Economics

Rolling Stone: Have you heard about the midnight regulations?

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Not relevant, but a nice picture to look at and "Midnight Rambler" is track five.

Rolling Stone lays into George Bush for his "final F.U.," the passage of policies at the close of an administration known as "midnight regulations." Here's a nut graf, which includes a quote from reason columnist and Mercatus Center economist Veronique de Rugy, the leading scholar of the process:

Under the last-minute rules, which can be extremely difficult to overturn, loaded firearms would be allowed in national parks, uranium mining would be permitted near the Grand Canyon and many injured consumers would no longer be able to sue negligent manufacturers in state courts. Other rules would gut the Endangered Species Act, open millions of acres of wild lands to mining, restrict access to birth control and put local cops to work spying for the federal government.

"It's what we've seen for Bush's whole tenure, only accelerated," says Gary Bass, executive director of the nonpartisan group OMB Watch. "They're using regulation to cement their deregulatory mind-set, which puts corporate interests above public interests."

While every modern president has implemented last-minute regulations, Bush is rolling them out at a record pace—nearly twice as many as Clinton, and five times more than Reagan. "The administration is handing out final favors to its friends," says Véronique de Rugy, a scholar at George Mason University who has tracked six decades of midnight regulations. "They couldn't do it earlier—there would have been too many political repercussions. But with the Republicans having lost seats in Congress and the presidency changing parties, Bush has nothing left to lose."

More here.

In case you're wondering about the intellectual integrity of OMB Watch, return now to the thrilling days of yesteryear (2001), when Bill Clinton was setting a record for the number of midnight regulations. Did OMB Watch get its knickers in twist? Not exactly:

As the Clinton presidency winds down, industry groups and their allies in Congress are angrily accusing the administration of "midnight rulemaking" for a number of major new regulatory initiatives designed to protect public health, safety, and the environment. This criticism, however, is nothing more than propaganda—which unfortunately has generated a number of misleading stories by the press.

The whole idea of "midnight regulations" should seem ridiculous to anyone who understands the rulemaking process. Agency rulemakings are guided by a legislative framework, requiring various analyses, public notice and comment, etc. These requirements are extremely time-consuming; it is not unusual for major rules to take more than 10 years to develop. If an agency ignores its legislative requirements in developing a rule, it is sure to face a court challenge, and the rule will be thrown out.

Undoubtedly, the Clinton administration is trying to wrap up work before the president's term expires. But the regulations cited by industry have been worked on for years, and are a surprise to no one….

More here.

Which isn't to say the midnight regulations aren't a pernicious use of the system. In fact, that's precisely why they should be stopped, whether you agree or disagree with the outcome in any given case. As de Rugy explains in a Mercatus paper, virtually no midnight regs are repealed or substantially altered.

We should absolutely care about midnight regulations. While some midnight regulations may provide real benefits that exceed costs, most result in more harm than good and cater to special interests rather that the public interest. That is why they are hurried into effect without the usual checks and balances.

More on that here.

NEXT: Why Are Traders the Last To Know When a Bubble Is Bursting?

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  1. Under the last-minute rules, which can be extremely difficult to overturn, loaded firearms would be allowed in national parks….

    So far so good……

  2. So far so good……

    And this just puts national parks on the same footing as national forests. I understand the worry, what with the regular shootouts occurring in our national forests.

  3. Nick-

    How about midnight repaeals of regulations?

  4. Under the old rule you were in violation if you just drove on the Blue Ridge Parkway or Natchez Trace with a firearm in your car.

    Could this be Bush’s greatest domestic policy achievement?

    I always thought Clinton’s greatest was doing away with selective availability on the GPS.

  5. “But with the Republicans having lost seats in Congress and the presidency changing parties, Bush has nothing left to lose.”

    Remember kids, democracy is the solution to your problems.

  6. And this just puts national parks on the same footing as national forests. I understand the worry, what with the regular shootouts occurring in our national forests.

    There are certain national forests and state parks in Georgia where the rangers always advise hikers to wear reflective vests. Even with one, I’m not able to have the relaxing hike I wish for.

  7. After the coming micro-management of all of our lives by the Obama govt kicks in, deregulation won’t be a dirty word anymore for most people.

  8. Agency rulemakings are guided by a legislative framework, requiring various analyses, public notice and comment, etc. These requirements are extremely time-consuming; it is not unusual for major rules to take more than 10 years to develop.

    That’s exactly why there’s a big incentive for an outgoing administration to promulgate midnight regulations: because its successor will have to go through that lengthy procedure to amend or repeal those regulations. What nobody seems to be mentioning is that the “midnight regulations” the Bush administration is trying to push through have already been working their way for several months through the rulemaking procedures required under the Administrative Procedure Act. If new regulations could be issued at a moment’s notice, there would be no point in rushing them through, since they’d only be in effect until January 21 or so.

  9. One of the features of National Parks, as opposed to National Recreation Areas, is that parks prohibit hunting whereas recreation areas don’t.

    Restrictions on firearms in national parks aimed at preventing hunting accidents seem reasonable to me. Bush’s regulation allowing concealed carry on park land doesn’t seem likely to increase hunting accidents.

  10. They’re using regulation to cement their deregulatory mind-set…

    This sounds good too if the “non-partisan” guy is correct

  11. How about freezing regulations and pardons the day of the election until the new President takes over?

    I guess neither party would be willing to give up that power just to keep the other guy from having it.

  12. “Restrictions on firearms in national parks aimed at preventing hunting accidents seem reasonable to me.” Reasonable if one believes that further projections of state power should be on the table. Such a belief is manifestly unreasonable.

  13. So, many of Bush’s midnight regs are really de-regs?
    What’s not to like?
    Now I’ve just begun to dread Obama’s midnight regs.

  14. They’re using regulation to cement their deregulatory mind-set

    So even when they regulate they are deregulating. The myth of Bush as a “deregulator” is locked in stone, I see.

  15. In case you’re wondering about the intellectual integrity of OMB Watch

    After they accused Bush of having a deregulatory mindset, I definitely wasn’t wondering.

  16. As de Rugy explains in a Mercatus paper, virtually no midnight regs are repealed or substantially altered.

    Every single regulation (whether midnight or otherwise) could be repealed, altered, or overwritten by an act of congress (after being signed by the president). With control of the white house and congress, the only thing they would have to stop them is a filibuster from some recalcitrant republican senators. There is no way, however, that Snowe, Collins, and others on the margin are going to hold fast on every single thing. Even the auto bailout had 10 republicans in support, enough to invoke cloture (of course there may have been some strategic voting in favor of a doomed bill). Reid, however, has possibly the worst parliamentarian skills of any majority leader in history. (Pelosi started out weak, but seemed to have learned by the second session – but still mulliganed the first round of the financial bailout) (please note this is a descriptive not normative analysis)

    But what this really shows is the complete abdication of congressional powers to executive authority. The legislative branch is loathe to take any responsibility whatsoever for anything (and this has been true for decades regardless of which party controls congress – with the arguable exception of a brief period from ’94 – ’95. But was nipped in th bud when Gingrich lost the throwdown with Clinton in Oct ’95).

    If Obama accomplishes one thing – restoration of the legislative branch to a coequal branch- it will be a significant and substantive accomplishment. But I’m not holding my breath.

  17. And this just puts national parks on the same footing as national forests.

    Actually, Florida state law prohibits firearms in national forests, except during hunting season and on roads going to and from the public shooting range.

    Both NFs in Fla have public shooting ranges (funded with Pittman-Robertson money), so for all practical purposes the law is so ambiguous to have no affect or alternatively to create endless opportunity for abuse by several layers of law enforcement.

  18. The first indication that Bush had nothing left to lose was when they offed the patsy in the Antrax attacks case.

  19. “many injured consumers would no longer be able to sue negligent manufacturers in state courts”

    Am I the only one who picked up on this part?

    This is very troubling.

  20. Isaac,

    Interesting. How can Florida state law have jurisdiction in a “national” forest, though?

    Also, in light of the Florida state constitution, quoted below, how is a Florida ban on firearms legal?

    SECTION 8. Right to bear arms.–

    (a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.

    (b) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun. For the purposes of this section, “purchase” means the transfer of money or other valuable consideration to the retailer, and “handgun” means a firearm capable of being carried and used by one hand, such as a pistol or revolver. Holders of a concealed weapon permit as prescribed in Florida law shall not be subject to the provisions of this paragraph.

    (c) The legislature shall enact legislation implementing subsection (b) of this section, effective no later than December 31, 1991, which shall provide that anyone violating the provisions of subsection (b) shall be guilty of a felony.

    (d) This restriction shall not apply to a trade in of another handgun.

  21. Mike,

    I’d have to know the details.It might be a good thing.

  22. Under the last-minute rules, which can be extremely difficult to overturn,

    No more difficult to overturn than to enact. All it takes is the agency writing a new rule as directed by Congress or the President.

    loaded firearms would be allowed in national parks,

    Good.

    uranium mining would be permitted near the Grand Canyon

    Good.

    and many injured consumers would no longer be able to sue negligent manufacturers in state courts.

    That sounds pretty tendentious to me. I’d want to see the rule, but in general, reducing lawsuit abuse is a good thing.

    Other rules would gut the Endangered Species Act,

    Again, tendentious, but given the way it has been abused, probably good.

    open millions of acres of wild lands to mining,

    Good.

    restrict access to birth control

    Tendentious, again, as I believe what has really been done here is restrict the right of employers to fire staff who won’t comply with employer policy.

    and put local cops to work spying for the federal government.

    Bad.

    Of course, YMMV, but my general take is that Mercatus is a bunch of partisan hacks, and that at least half of these rules are a move in the right direction.

    I also think it would be a good idea to freeze rulemaking and pardons on election eve, but that would take a Constitutional amendment.

  23. It’s a mixed bag to be sure.
    I too would like to see a new regulations holiday from Nov 1 of the presidential election year until inauguration.

    If you wanted to add pardons* to that holiday you would get no argument from me.

    * I know, I know. A constitutional amendment would be required so it ain’t gonna happen. It’s still a good idea.

  24. Am I to understand that, in the last days of a presidency, the Constitution is legally suspended? Is the Constitution still a viable document, or are we finally past pretending?

  25. People do get attacked by ferocious animals in national parks. Carrying a rifle (grizzly bears laugh at sidearms) might be a prudent course of action while hiking or backpacking.

  26. Am I to understand that, in the last days of a presidency, the Constitution is legally suspended? Is the Constitution still a viable document, or are we finally past pretending?

    Nah. This stuff can be done anytime. It’s just put off to avoid the electoral repurcussions.

  27. I also think it would be a good idea to freeze rulemaking and pardons on election eve, but that would take a Constitutional amendment.

    While we’re at it, let’s ask Santa for elimination of “pork”, earmarks, or any other such thing in the budget process. Can’t hurt to ask, even if you know the answer already.

  28. wayne

    As far as I know, as far as the state is concerned, the federal govenment is just another property owner when it comes to the NFs.

    There are also many interlocking jurisdictional things going on here too.

    While the land itself is a National Forest, many of the functions on it (recreational uses, wildlife management, hunting, the aforementioned public shooting range etc) are under state control. Through several different state agencies.

    There are also state highways and county roads running through the forest. FHP or the local sherriff have jurisdiction here.

    As to how the state can have the law; I suspect it is widely ignored, seldom or never enforced and noone has ever bothered to test it.

  29. Degregulatory regulations… good one.
    If it’s a regulation it’s a regulation. If it’s removing a regulation it’s removing a regulation. If you regulate so that it preferences a certain firm or industry, that’s bad regulation. The stupid folk are trying to make it so that all regulations are good and all deregulation is bad, and so they’re just calling what they don’t like “deregulation” and what they do like “regulation”

  30. Freezing rulemaking on election eve is a laughable suggestion. This would do absolutely nothing at all.

    Most of these regs have been in the pipeline for many months. Setting a limit in November would only mean that the new regs get passed in October.

  31. (grizzly bears laugh at sidearms)

    Nobody laughs at a .50 AE.

    Well, maybe the orthopedic surgeon when you tell him how you the recoil broke your wrist.

  32. So the president is, essentially, a king.
    George III gets the last laugh.

  33. Stretch,

    It wouldn’t be about the timing, it would be about a President using the lame duck status to avoid the electoral consequences of bad ideas.

    Yes, it’s probably not feasible, but it would keep politicians just a tiny bit more honest.

  34. Well, maybe the orthopedic surgeon when you tell him how you the recoil broke your wrist.

    Ha ha, you huge sissy.

    (fires Smith & Wesson Model 500, winces in pain)

  35. Episiarch,

    Would that blow the bear’s head clean off, or is that limited to the .44 Magnum?

  36. That would depend on whether you felt lucky, ProL. You punk. Well, do you?

  37. I am a simple tailor, Episiarch, not a Cardassian spy.

  38. The first time my dad fired a .44 he wasn’t holding it tight enough and it split the webbing (what’s that piece of skin called?) between his index finger and thumb. Took forever to heal.

  39. If I had an opposable thumb I’d get one of these Pfeifer Zeliska .600 Nitro Express revolvers. Together we’d be the ultimate killing machine.

  40. If that’s a DS9 reference it’s over my head, ProL. I don’t watch Star Trek series that take place on space stations that look like the jewelry sold at Renaissance fairs.

  41. Andrew Robinson played the Scorpio Killer (the punk who did not feel lucky) and a character on DS9. You may reject the rest of the series, but you have to know that fact and that Avery Brooks is Hawk.

  42. You may reject the rest of the series, but you have to know that fact and that Avery Brooks is Hawk.

    How dare you question my knowledge of Spenser: For Hire.

    “Spensssssah”

  43. Hawk is close to my favorite TV action character ever. I love that man like a spiritual brother who kicks people’s asses.

  44. The A Man Called Hawk spinoff was disappointing, though.

  45. Who cares as long as there are no midnight appointments to important jobs like, say, D.C. magistrate? That sort of thing could lead to serious constitutional implications.

  46. Episiarch,

    It didn’t have time to develop. One weakness, of course, is that they toned down the New Age violence of Hawk a little too much.

    Maybe the House creators could revive A Man Called Hawk? They understand the appeal of someone who operates outside of society’s rules. Brooks is only sixty, so he could still play the role. Or maybe an HBO series? HBO has no problem with violence.

  47. ProL, it was a failure because they wanted to make him an Equalizer-style community do-gooder. That was stupid. Hawk is a pimped-out badass who wears white suits, not Robin Hood. Dumb, dumb, dumb.

  48. Like I said, I’d like the House approach for Hawk. Over a number of shows, you realize the protagonist is, in fact, a good guy, but in any one episode, the violence and seeming disdain for other humans should be the dominant theme.

  49. Hawk: You’re the detective. I’m just a thug.
    Spenser: You’re too modest.
    Hawk: Didn’t mean to say I wasn’t a great thug.

  50. *looks at Pro Lib’s and Epi’s comments, mutters to self “TV geeks”*

  51. Didnt that DS9 episode win an award or something? I remember it being a very good episode, even if a little over-cliched.

    The Cardassian:Bajoran::Nazi:Jew thing was a little overdone.

  52. Which DS9 episode? I don’t recall referring to one, unless you mean the one where Hawk pointed a .44 mm phaser at Garak and asked him whether he felt lucky.

    Naga,

    Someone sporting an obscure Star Wars cognomen should not cast antimatter rocks in a matter house.

  53. Pro Lib,

    I was thinking of Duet, but I was confusing Garak with the Cardassian from that episode.

    From an episode guide:

    Kira discovers that a Cardassian visiting the station could actually be a notorious war criminal. However all is not as it seems when information supplied by Gul Dukat reveals that the Cardassian they are holding cannot be who he claims to be.

  54. The gun control groups have been implying that the national park gun ban partial repeal was a “midnight regulation” despite the fact that a dialog of some sort has been going on since at least 2004 that I remember.

    The last 18 months have seen news stories about. In that same time frame, gun control groups have sent out their usual hysterical press releases and emails predicting blood in the forest, shootouts over camp spaces, increased poaching, increased threats to rangers and other assorted malaise if the ban were reversed.

    So, they knew this was coming a long time. Anyone claiming this is some last minute thing is being deliberately misleading and/or don’t know the history of this issue.

  55. Undoubtedly, the Clinton administration is trying to wrap up work before the president’s term expires. But the regulations cited by industry have been worked on for years, and are a surprise to no one….

    The biggest of Clinton’s midnight regulations were the HIPAA medical privacy rules, a grossly ultra vires set of rules that have imposed billions of dollars of cost on health care. Sure, they were being worked on for years, but what that means in the real world is that there was ferocious opposition to them that couldn’t simply be waved away until the end of his term, when it became too late for blowback to hurt him.

  56. R C Dean

    What the hell are the HIPAA medical privacy rules?

    I know I now have to sign reams of forms every time I go to the doctor, everyone of then containing nothing but jibberish.

    I still don’t know how this protects my privacy more than the unwritten “you will release no information without my consent” compact that operated just about for ever.

  57. What the hell are the HIPAA medical privacy rules?

    There aren’t enough pixels on the internet.

    Suffice it to say that they were rules that were hotly contested for years, were never authorized by Congress, but were ardently sought by a (relative handful) of activists who wanted federalization of medical privacy law.

    These activists, needless to say, found receptive ears in the halls of the Department of Health and Human Services, who were only too glad to expand their portfolio to include regulation of medical records.

  58. Pro Liberate,

    Point taken. Though in my defense your incredible knowledge of popular culture in general turns me green with envy. Around Biloxi, I’m a trivia god, “my mind a raging torrent, flooded with rivulets of thought cascading into a waterfall of creative alternatives”. On the internet, I have a mediocre grasp of trivia.

  59. Biloxi? Man, it’s hot. It’s like Africa hot. Tarzan couldn’t take that kind of hot.

  60. See, Naga, saying “Biloxi” is just an invitation for him to quote Biloxi Blues. If you’re going to set him up, make it harder.

    “I want you to know something, officer. I wouldn’t print anything like this. I mean really…candles stuck in all her privates? That’s just sick.”

  61. Okay that was funny but proves my point nonetheless. On the trivia food chain I’m just a codfish. (Lets see you find THAT reference!)

  62. I object to the merely obscure.

  63. Naga,

    I bet your codfish quote comes from some sort of Star Wars fan fiction.

  64. Try this on for size, ProL:

    “You fat! People like you should be ground into dog meat!”

    (I own a copy of that movie)

  65. Good and Shatty, I like it.

    I own John Landis’ Schlock (aka The Banana Monster) on VHS, natch. It’s not loaded with quotes so much as with, well, schlock, but here’s one:

    Cal: How do you feel?
    Mindy: I feel more like I do now than I did when I got here.

  66. Folks, this article was from Rolling Stone. It’s not like they’ve got Hunter S. Thompson writing for them anymore, you know. It’s a piss-poor shadow of what it was in the Seventies.

    Rolling Stone and most of the people who write for them, have very few libertarian tendencies. They’re like advertisers for GM in 1964: what’s good for the Democratic Party is good for the Country.

  67. There aren’t enough pixels on the internet.

    Oh, that’s OK.

    I’m sure the complete explanation would just confuse me even more. 🙂

  68. What is it with Ms. de Rugy about this? She was on Brian Lehrer’s show yesterday and it was pointed out that one of the regulatory changes (in formal terms, any regulatory change, including deregulatory ones and rescindings of regs, is “a new regulation”) that she objects to at “midnight” was one she’d promoted at her think tank. There’s got to be some log rolling or something going on here. AFAICT, I’m in favor of the midnight regs on the whole, and am glad they can be put into effect any way they can do it; if that’s when the voters aren’t watching, fine.

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