Bush Hits Deadline For 'Midnight Regulations'

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This is a big day in obscure but powerful corners of the Bush administration. There are now 60 days until Jan. 20, when President Bush leaves office and President-elect Barack Obama is sworn in. By no coincidence, there's also a law mandating a 60-day waiting period before any big, new federal regulations take effect. That means today is the deadline set by the Bush administration to get rules onto the books before the Democrats arrive.

This is sometimes called "midnight rule-making" — even if 60 days (or the 30-day waiting period for lesser rules) make for a long midnight.

President Bush's chief of staff, Joshua Bolten, set a timetable last May speeding up the regulatory process to beat the deadlines. It has hardly been mentioned at White House press briefings. Earlier this month, spokeswoman Dana Perino brushed aside a single query as to whether the Obama administration could undo the new regulations. Perino suggested this wouldn't be necessary.

"What I will tell you," she told the questioner, "is that policies that this president has made have been carefully considered. All of the due diligence has been done on a range of these issues."

Regulations now emerging from the pipeline affect all sorts of hot-button issues.

"It's unfortunate that so many of the rules will damage the environment or roll back existing requirements on pollution," says Matt Madia, a regulatory process analyst at OMB Watch, a nonprofit group that monitors the White House Office of Management and Budget, overseer of all agencies' rule-making. He says that regardless of the issue, all of the decisions are decidedly conservative and pro-business: "These are the kinds of things we're seeing, and they're not in the public's interest."

Take, for example, the Labor Department's new regulations on the Family and Medical Leave Act.

The law was passed during the Clinton administration, with corporations fighting to stop it. It lets workers take unpaid leave to tend to medical and family needs.

Two years ago, the Labor Department started the current rule-making. Last year, it started writing draft regulations. Then, last month, Labor abruptly approved a final version, and 15 days later, OMB approved it.

Everyone likes one part of the regulations, giving extra family and medical leave to families of service members who are recovering from injury or illness.

But another provision is fraught with controversy. It allows companies to impose rules that keep employees from using paid vacation as a substitute for the unpaid Family and Medical Leave time.

The National Association of Manufacturers wanted this change from existing regulations. Keith Smith, the association's director of employment and labor policy, says it wasn't a "midnight" rule. "This wasn't something that was rushed through by any means," he says. "Even though these regulations were long overdue, they [the administration] took the time to make sure they were done right. They looked at the feedback, the comments provided by thousands of commenters."

Among those opposing the new regulations was the National Partnership for Women and Families.

"In difficult economic times in particular, it's very tough to take leave that's unpaid," says general counsel Jocelyn Frye. She says there's no reason, legal or otherwise, for the change: "It was always our view that these [new] regulations were unnecessary."

Similar quarrels are breaking out over other regulations.

Bush is far from the first president to wield last-minute power this way. John Adams set the precedent in 1801, appointing what were dubbed the midnight judges.

Eight years ago, President Clinton approved dozens of new regulations in his final days. But he waited too long. The 60-day waiting period hadn't run out before he left office, and President Bush was able to put them all on hold. Republicans in Congress mocked Clinton's last-minute burst of action. Then-Sen. Don Nickles (R-OK) said of the Clinton administration, "They couldn't get whatever they wanted to do through Congress, and so all of a sudden they started issuing regs, particularly in the last couple weeks of the Clinton administration, in some cases to give things to their supporters."

Now, Democrats are making the same accusation of President Bush. And he has tried to avoid Clinton's misstep by getting his midnight regulations into effect now, so that the 60-day waiting period can expire before he leaves office.

Congressional Democrats, including Sen. Hillary Clinton, are already introducing bills designed to outmaneuver Bush.



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