Editorials

A curious coalition of groups, ranging from the liberal Environmental Defense Fund to the conservative Competitive Enterprise Foundation have joined to ask the Bush administration to forego the presidential practice of enacting "midnight regulations."

It may be a time-honored tradition, but it is poor public policy.

"This is a matter of good regulatory policy," says Eli Lehrer, a senior fellow at the Competitive Enterprise Institute. "The Bush administration has had eight years in office and has issued more regulations than any administration in history. At this point, in the current economic climate, it would be especially harmful to push through ill-considered regulations in the final days of the administration."

Many presidents enact new rules late in their tenures. Bill Clinton holds the record. In the last week before his successor was inaugurated in January 2001, Clinton issued 2,568 pages of new regulations. His total for the three-month period leading to Bush's inauguration was 25,605. Jimmy Carter issued 24,531 pages of new regulations in the waning days of his presidency.

Administrations "want to leave a legacy," according to OMB Watch, a watchdog group in Washington, and often enact new rules to perpetuate their policies.

Bush's chief of staff pledged in May that the administration wouldn't enact any midnight regulations - and put a deadline of Nov. 1 on any new regulations to become final - but the administration is now considering a whole slew of them.

"We are calling on President Bush to keep his promise not to issue new regulations in the 11th hour of his presidency," says John Kostyack of the National Wildlife Federation. "Midnight rule-making allows unfavorable controversial policies to become law by circumventing the citizen participation process."

Such regulations can be very difficult to undo. When Reagan tried to overturn some of Carter's midnight regulations, the U.S. Supreme Court ruled that Reagan's actions were "arbitrary and capricious" and reinstated the regulations.

Other groups signing a letter to Bush include the American Consumer Institute, Capital Research Center, Defenders of Wildlife, FreedomWorks and Republicans for Environmental Protection. These groups span the political spectrum, but they agree on one point.

"The people through their votes, provide a check on unwise rulemaking," the groups wrote to Bush on Oct. 31. "When you issue regulations as a departing administration, you do so without this check and, in some cases, against the will of the people."

The groups acknowledge their differences.

"As a coalition, we do not take a position on any particular (proposed) rule, but, rather, a principled stand on the proper conduct of rulemaking," the letter reads. "Our coalition likely contains proponents and opponents of nearly every major regulation you would consider. We have different interests, but share a conviction: For the next few months, you should avoid issuing all but the most urgent new regulations."

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