Transitions: Legal Change, Legal Meaningsby Austin Sarat
Together the essays in this volume investigate the transformation of US law during moments of political change and explore what we/i>
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Transitions: Legal Change, Legal Meanings illustrates the various intersections, crises, and shifts that continually occur within the law, and how these moments of change interact with and comment on contemporary society.
Together the essays in this volume investigate the transformation of US law during moments of political change and explore what we can learn about law by examining its role and its use in times of transition. Whether by an abrupt shift in regime or an orderly progression from one government to the next, political change often calls into question the stability and versatility of the law, making it appear temporarily absent or in suspension. What challenges to the law arise at these times? To what extent do transitional periods foster ingenuity and resourcefulness, and how might they precipitate crises in legal authority? What do moments of legal change mean for law itself and how legal institutions bring about and respond to times of transition in legal arrangements? Transitions begins the scholarly exploration of these questions that have largely been neglected. Contributors
Akhil Reed Amar / William L. Andreen /
Jack M. Beermann / Heather Elliott / Joshua
Alexander Geltzer / David Gray / Paul
Horwitz / Daniel H. Joyner / Nina
Mendelson / Meredith Render / Austin
Sarat / Ruti Teitel / Lindsey Ohlsson Worth
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TRANSITIONSLegal Change, Legal Meanings
THE UNIVERSITY OF ALABAMA PRESSCopyright © 2012 The University of Alabama Press Tuscaloosa, Alabama 35487-0380
All right reserved.
Chapter OneMidnight Deregulation Jack M. Beermann
Presidential transitions are exciting and perilous. How the president-elect will make the transition from candidate to chief executive of the world's most powerful country is unknown and essentially unknowable until it happens. Even under ordinary circumstances the transition is an emotional time, with the new president's supporters hopeful and excited and the defeated candidate's supporters disappointed and anxious. For many reasons, these emotions were magnified in 2009 when Barack Obama assumed the presidency. On the one hand, the outpouring of emotion at the inauguration of the nation's first African American president made this the most eagerly anticipated transition since the election of John F. Kennedy. On the other hand, perhaps fueled by extreme rhetoric during the campaign that questioned Obama's patriotism and status as an American citizen, Barack Obama's skeptics appeared more anxious over his ascendancy than the opposition had been to any president in living memory.
The focus of the transition is forward looking—what does the future have in store for this president and for the country that elected him? Unfortunately, in recent decades, the new president's ability to propel the country into the future has been hindered by what has become a well-known phenomenon, midnight regulation. Rather than facilitate a smooth transition, outgoing administrations have attempted to push their, oft repudiated, agendas into the future, leaving messes of various shapes and sizes for their successors to clean up.
The midnight regulation phenomenon has received a great deal of scholarly and popular attention, most notably after President Bill Clinton eclipsed President Jimmy Carter's record for the greatest increase in regulatory volume at the end of the term. Consider midnight regulation in normative terms, focusing on the attitude officials take during periods of transition. Imagine you are the leader of an organization facing the end of your term in office. It could be a large corporation, a large nonprofit organization, a small community service organization, or any sort of organization imaginable. What posture should you take toward the transition? Should you pave the way for your successor to have a smooth transition—for example, by resolving some thorny issues and tying up loose ends—or should you consider only your own interests and if that makes things difficult for your successor, so be it? In my view, the answer to these questions should be obvious, and it is only the inability to put politics aside for even a brief period around the transition that prevents outgoing presidents from doing right by the country rather than by their political party or personal ambitions.
The transition from George W. Bush to Barack Obama introduced a new wrinkle into the midnight regulation phenomenon: a great deal of the late-term activity of the Bush administration is best characterized as "midnight deregulation" because, rather than impose new regulatory burdens, it loosened them. The open scholarly question is whether midnight deregulation raises issues different from or in addition to those raised by midnight regulation. The answer to this question turns in large part on whether the law and politics underlying deregulation differ in any relevant way from the law and politics underlying regulation.
My intuition is that the Bush administration waited until late in the second term to take some of its deregulatory action because the opposition would have been great at any earlier time and because the campaign of Republican presidential nominee John McCain might have been negatively affected. This is consistent with one hypothesis underlying the midnight regulation phenomenon; namely, that presidents wait until late in the term to take potentially unpopular action when the political consequences are reduced. However, there is a competing equally logical hypothesis, that at the end of the term, the president is free to rise above ordinary politics and take action that is in the public interest but which politics prevents in ordinary times when the administration is more concerned with accountability. Because these two hypotheses are each inherently plausible, a qualitative analysis and perhaps some speculation is required to offer an opinion on which better explains federal regulatory events in 2008–2009.
This chapter looks at midnight deregulation through the lens of the midnight regulation problem and asks whether the general understanding of midnight regulation should be adjusted to account for midnight deregulation. Part I describes the midnight regulation problem generally and the actions that administrations have taken to deal with the prior administration's midnight regulations. Part II is the analysis of the Bush administration's midnight regulatory action and a more general discussion of the midnight deregulation problem. Part III is the conclusion.
I. Midnight Regulation Mechanics
The midnight regulation phenomenon has become a familiar landmark on the presidential transition landscape. The volume of regulatory activity increases near the end of an outgoing president's term, especially when the incoming president is from the other political party. There are several reasons for the midnight regulation phenomenon, some of which are relatively benign and some that raise questions of the propriety of the action. The most benign reason for the increased volume of late-term regulatory activity is the natural human tendency to work to deadline. Often, regulatory actions that have been pending for a long time, even several years, finally are finished right at the end of the president's term before a new administration, with different policies or priorities, takes office. There is nothing like a firm deadline to inspire action.
The approaching deadline for completing preexisting regulatory work is not the only factor that contributes to the midnight regulation phenomenon. As the transition approaches, the incumbent administration may hurry not only to finish work that is well underway but may also try to do as much as possible to project its policy agenda into the future. If the outgoing administration knows or suspects that the new administration will have different views in important policy areas, the outgoing administration may initiate and complete regulatory action late in the term out of a conviction that its policies are superior to those of the incoming administration or to strengthen the outgoing group's future political chances. Projecting a repudiated policy agenda into the future seems less legitimate than simple hurrying to meet a deadline, because it frustrates the electorate's desire to change directions. However, continued and unending political competition creates an irresistible temptation for outgoing administrations to do whatever they can to further the agenda until the very last.
Another familiar reason for midnight regulation is what I have called "waiting." An outgoing administration may, for political reasons, wait until late in the term to take regulatory action. This includes action just before the election to maximize an anticipated positive political impact and action after the election that is anticipated to be unpopular and thus might harm the incumbent's party in the election. Waiting until just before the election seems problematic for two reasons, first because it is an abuse of the incumbency to time regulatory action to influence election results and second because, assuming earlier action would have been better for public policy, waiting to maximize positive political impacts represents placing personal political ambition ahead of the public interest.
At first blush, waiting until after the election may appear to be unambiguously problematic. We want our political leaders to be responsive to the popular will and not to time action to avoid the political consequences. From this perspective, the ability of an outgoing administration to take significant action during the transition period is an unfortunate defect in our constitutional structure. That's not to say that the lame-duck period should be eliminated. In addition to needing time to accomplish the mechanics of the presidential transition, the disputed 2000 election illustrates that the process of counting the votes and certifying the winner takes time. Although the best design of a democratic process for changing leaders may include a lame-duck period, midnight regulation may be an unfortunate side effect of a generally superior system for selecting and installing leaders.
While the negative first impression of waiting until after the election to take regulatory action is compelling, there may be circumstances when waiting is desirable or is at least a positive side effect of the constitutional structure that creates the lame-duck period. The influence of interest groups and other powerful political forces in our governmental system is often bemoaned as the reason why so much regulatory action seems counterproductive from a pure policy standpoint. During the transition period, an outgoing president is freed from immediate political concerns and may feel free to take action that may be good for the public but harmful to interest groups with disproportionate influence over the government. A lame-duck president can rise above everyday politics and take public-regarding action. The lame duck's successor may benefit if the outgoing president clears the waters of political minefields and lingering problems, paving the way for a smooth transition and for the new president to hit the ground running.
It does not seem possible to predict theoretically which tendency actually dominates during the transition period. Rather, it appears to be an empirical question that can be resolved only by qualitatively examining late-term regulatory actions of the outgoing administration. One source of possible clues to whether late-term action was taken in the public interest is the reaction of the incoming administration to that action. If one takes acceptance of late-term action by the incoming administration as an indication of its consistency with the public interest or at least an indication that it is not the product of projecting a repudiated agenda into the future, then it would be helpful to look whether midnight regulation tends to be rejected or revised by the incoming administration. This is not a perfect measure because there are many reasons other than agreement for why an incoming administration might accept its predecessor's midnight regulation. Although complete data are not available, the data that are available can help us get a sense of the degree to which midnight regulation is inconsistent with the preferences of the incoming administration.
Before getting to the data, it is necessary to take a step back and examine the general approach administrations take when confronted with the late-term actions of their predecessors. Incoming administrations dating back to Ronald Reagan have taken very similar approaches at the outset of their administrations to the problem of midnight regulation. They have tended to take the following steps upon taking office: (1) They have instructed all agencies to stop issuing rules until they are reviewed and approved by an official appointed by the incoming president. This has amounted to a regulatory freeze because it takes some time for appointments to be made and for new appointees to conduct the reviews; (2) They have instructed the Office of Federal Register not to publish any new regulations issued by the prior administration. This results in new regulations being subjected to review by the new administration; and (3) They have instructed agencies to review regulations issued by the prior administration but not yet in effect and to delay the effective date of any such regulations if necessary to complete the review.
Although the procedures put in place by the incoming administrations have been fairly uniform, the results of this action have varied. In a study of the actions of Presidents Bill Clinton and George W. Bush, the authors found that President Clinton amended or repealed a much higher percentage of the prior administration's midnight regulations than did President George W. Bush. This can signify a number of differences between the two transitions. It may simply mean that Presidents Bush and Clinton differed in their views on the importance of reexamining the past as opposed to embarking on the future. It may mean that more of the George H. W. Bush administration's midnight regulations were the product of "waiting" until after the election to avoid political consequences while those of the Clinton administration were simply the product of hurrying to finish work that had been delayed during the administration's eight years. It may also mean that the political differences between the George H. W. Bush and Clinton administrations were greater than the differences between the Clinton and Bush administrations so that Bush was more likely to leave the Clinton-era regulations in place. This explanation is consistent with the fact that when Bush reopened Clinton midnight regulations, it was very controversial, which may indicate that the Bush administration took office with a relatively weak mandate for change.
In light of the dubious political desirability of midnight regulatory action and the apparent institutionalization of the practice, it is not surprising that a pattern of reaction by incoming administrations to midnight regulation has developed. It is a shame that administrations cannot resist the temptation to engage in the practice even after experiencing firsthand the burdens midnight regulation imposes at a time when the new administration should be able to act on its electoral mandate as reflected in its regulatory agenda. The political gains from midnight regulation to the party of the outgoing administration must be so great that even the Bush administration, which had taken a principled stand against midnight regulation, felt compelled to engage in the practice.
The Bush administration was the first to take a stand against midnight regulation by its own agencies. President Bush's chief of staff Josh Bolten issued a memorandum that ordered all agencies to publish proposed regulations by June 1, 2008, and to finalize regulations by November 1, 2008, unless extraordinary circumstances warranted later promulgation. This decision was probably born of the Bush administration's experience with the Clinton administration's record-setting volume of midnight regulation. Whether the motive behind the memorandum was to take a stand against midnight regulation or to simply immunize the Bush administration's late-term actions from reversal by the next administration, the effect would have been the same—the volume of midnight regulation would have been substantially reduced and the new administration would have been relieved of the necessity of sifting through mountains of paper to ensure that its agenda was not being subverted by midnight regulation.
The Bolten memo was a partial success, regardless of whether its underlying purpose was to reduce the volume of midnight regulation or inoculate the Bush administration's midnight output from easy revision. The Bush administration issued slightly more final regulations (212) in its final year than the Clinton administration (209), but 112 of the Bush regulations were issued before November 2008, while only 63 of the Clinton regulations came out before November 1999.12 This means that in the Bush administration there was a lower volume of true midnight rules and a higher number of final-year rules that were not subject to easy reversal or delay by the incoming Obama administration.
Further, under what has been characterized as "tremendous pressure," the Bush administration established criteria to determine when it would waive the Bolten memo's deadlines, and regulatory action was taken right up to the moment of transition to the Obama administration. Most of these criteria were sensitive to common objections to midnight rulemak-ing. Rules could be published after November 1 if they met one of the following four criteria:
1. Rules that had been submitted to the Office of Information and Regulatory Affairs (OIRA) for review before mid-October. This would relieve pressure on OIRA to rush its review.
2. Rules that the agency identified as high priority that had been publicly proposed long enough before the midnight period to allow for adequate notice and comment. This assured that midnight rules were not flying under the political radar after the election.
3. Rules that were subject to statutory or judicial deadlines. This allowed agencies to follow the law.
4. Rules that were considered presidential priorities, sometimes because of emergency situations such as rules designed to address the crises in financial and housing markets. This exception allowed for the issuance of controversial midnight rules such as the rule discussed below concerning conscience-based refusals of medical practitioners to engage in certain practices. (Continues...)
Excerpted from TRANSITIONS Copyright © 2012 by The University of Alabama Press Tuscaloosa, Alabama 35487-0380. Excerpted by permission of THE UNIVERSITY OF ALABAMA PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author
Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4 Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College and the Justice Hugo L. Black Visiting Senior Faculty Scholar at The University of Alabama School of Law. He is the author or editor of more than seventy books on law and society, including Imagining Legality: Where Law Meets Popular Culture, and he is the editor of the journals Law, Culture and the Humanities and Studies in Law, Politics, and Society. He also edits the book series Cultural Lives of Law at Stanford University Press.
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