How Midnight Regulations Work

But okay, so this is stuff you should know if you couldn't tell by now. Um, and uh, we're gonna talk about midnight regulation today, Chuck, what do you think? I think that's a great, great topic. Okay, So Chuck, let me paint a scene for you, right, Okay, anytime a president is is leaving the White House and a new one's coming in, there are transition teams set up right right. Um, Basically, you have a bunch of people who have been doing their jobs, you know, directing federal agents.

He's carrying out new policy, talking about new policy ideas, um, and they basically need to pass this information onto the next administration, so that you know, there's a smooth transition of power. Ideal, ideally, this is what happened. They don't just put it in a folder called how to be the President and leave it on the tusk of No, that would be really really bad. Um. And uh, you know,

some some transition teams are more successful in others. A president Bill Clinton had a terrible terrible time with it when he came into power. Um, when he was leaving, though, he gained a little more confidence. Uh when he left. George W. Bush, the second Bush, took over, and when his transition team showed up, they found, um surprisingly that most most of the keyboards in the in the White House offices, the letter W had been removed. I love that.

I think that's h It really is hysterical, just just the thought of and not politically speaking, but just the thought of a president playing practical joke on on then yeah, and all of his aids and yeah, and there was a whoopie cushion left in the chair of his office chair right yeah, kick me sign right. Um. So so that was awaiting President Bush when he took over. And um, there was a lot of other stuff awaiting him as well in the form of midnight regulations. Uh. Clinton actually

published twenties six thousand pages of new regulations. Yep, that's the number that we're waiting for his successor, and every last one of them ran contrary to Bush's policies. So, um, well, before we get into that, how about what what are midnight regulations? What's what's the definition? Uh well, I'm just

going off my brain here. I don't have a definition to read, but it's basically, um legislation that a president leaving president will try and uh slip through in the waning months of their of their tenure, during their midnight period, during their midnight period, which is from the time that the election is held November until they leave office, basically until the inauguration. And every every presidency has a midnight right there's there's the end of a presidency, and it's

those last few months. Um. But some are way worse than others. Usually the worst midnight periods, the worst transitions come when one party is losing control of the White House to another party and they just they do everything they can to sabotage one another. So it's kind of roughs. It's so unfriendly and Uh, it's hostile. Yeah, it is.

It's a little disheartening, yeah, but not surprisingly. And basically, you know, if you if you if you leave thousands of pages of new regulations, Um, basically, what you're doing is you're you're either extending your influence as president beyond the time that you leave the White House. Um, you could be doing it to hamstring your handicap the next in the next administration, basically tying their hands, especially when it's you know, when a Democrats taking over from a

Republican or vice versa. You know, the views run so contrary supposedly that um, you know, you want to keep the policy making going, and when it's actually with a midnight regulation, it's actually exceedingly difficult to um reverse We'll get to that in a minute. Many times it's it's actually your legacy as a president has a lot to do with these midnight regulations. Yeah. Yeah, a lot of times it's the it represents the more radical fringes of

a presidential agenda. Just amazing that the last two months of an eight year tenure can have more of an impact than the previous ye know, seven and uh, seven years and ten months. Yeah, and well, the weird thing is it's it's you can sit there and watch midnight regulation going on right um there there, But it's not an openly acknowledged activity, okay. UM, So to prove that it exists, some political scientists have actually, um done studies

on the Federal Register. The Federal Register is the complete comprehensive guide to federal regulation, and um they published actually

they publish addendums to it every day. So UM, some p some political scientists went back and looked at when you know, the amount of pages published in the Federal Register per quarter, per quarter, um, and they found that in the midnight of a presidency, especially during um, the transition of power from one party to another, the pages the page volume increases like sevent So it's odd to think that you would have to go prove it, but you know, the president's like, well, I'm just going about

my midnight regulation right now. It's it's it's such a cynical and sinister, democratically speaking tool, um, because the president is no longer accountable and so many people don't even realize what's going on, and uh, it's it's going on right now. I know you have a couple of things you wanted to mention, right, Yeah, I mean I've got a list. Uh, there's actually a great website called pro

Publica dot org. That's p r O dash publica dot org and you can get a full list there of the Midnight regulations at President Bush is trying to get through and UM not drawn judgment on any of them. It's up to you to decide. But that's a good website you can go to to actually read them and get a status on whether or not it's UM open for comment or close for comment or under review or approved or finalized or in effect. And we'll get to the comment part in a little bit too, right, Yeah, yeah,

we well let's let's let's talk about how it works. Right. So, basically, the legislative branch identifies a problem UM and says, well, we we could create this agency to address that problem, say the Environmental Protection Agency or the Securities and Exchange Commission or whatever, the FDA, it doesn't matter. All of those were created by congressional mandate, right, But it's up to the executive branch, the president's side, to make sure

that these these these mandates are being carried out. And how that's carried out is left pretty much of the discretion of the president. Congress can threaten to withhold funding or something like that. Um. They can also repeal laws. We'll get to that in a second too, But for the most part, the president issues regulations or the executive branch issues rules and regulations on how federal agency should act. Right. So, if you have a really pro business president, they're probably, um,

not going to give the SEC a lot of power. Um. And if you have somebody who's very much pro consumer, the SEC will likely you know, look out for investors more through these regulations. Right. And it's it's a lot more than just investors. I mean, just about every aspect of our lives as Americans is impacted by these regulatory agencies, you know. I mean like the the the e p A, the you and I have to go get um admissions tests every year before we get a new tag. That's

e p A. That's a federal you know regulation. Um. We can't run around, you know, shooting heroin between our toes. D A looks out for that kind of thing. Um. And then there's just a lot more like profanity on television. That's the uh f CC. So we're impacted in many, many ways. This isn't like just some high up hierarchy thing that's going on politically speaking, it's federal agencies are actually where the government and the public touch. Okay, that's

good way to say it. Thanks, thanks a lot that so okay, So we're impacted by this, and a president's views will direct how much we're impacted. Okay. Um, So these new rules are created, Uh, the the Office of Information, Information and Regulatory Affairs, they review these things right exactly, especially if it's big money involved. Yeah, hundred million dollar impact or more on the economy annually. Right, that's when

they get you know, special attention, right right. Um, So the the o I r A is supposed to look at these things, these new proposals, these proposed rules, and they're also supposed to well, they're supposed to look if to see if these things are cost with a cost benefit analysis. Um. They're supposed to look if the rules even needed, if there's any way to um, you know, use market forces to stimulate the change that these rules are meant to address, and any competing theories that may

actually be better competing alternatives to the proposed rule. So you can imagine for each proposed new regulation. This is just supposed to take a lot of time. If the O I R A signs off on the thing, um uh, an announcement gets published, and they actually publish an anouncement

in the Federal Register when they're first considering it. Then they publish another announcement saying what the outcome was once they once the O I R A signs off on it, and it's published in the Federal Register either thirty days for kind of smaller things, sixty days for big regulation, it becomes law. And that's sixty day time period is pretty important because what a president will do when they're

leaving office. If they hit their deadlines and get these uh through quick enough, the sixty days is up before the next president comes in, and it makes it a lot harder to undo what they've done. Yeah. Yeah, Once it's become law, you the process to repeal it is pretty much the reverse of the process to have it become law. You have to provide studies. Um, you have to provide alternatives that the president doesn't just come in and wave his or her magic wand and say everything

my predecessor just said is wrong and it's gone right. Good. Try but now and that's actually been a proposal to solve midnight regulation is to allow incoming presidents to repeal any law passed in the in the midnight period. Um. This is this is not necessarily the case. Um. This

has never been entertained as far as I know. Seriously, there are some things you can do as an incoming president, right, um too to stop this regulation what you got so once it's uh, the the new administrations in, they have to show that why repealing it, um is a good idea, And a lot of times you have to provide an alternative form of legislation. And then um. Congress actually has

a tool as well, called the Congressional Review Act. And this came about, which is ironic because the president that signed that bill into law was the most prolific midnight regulator of all time, Bill Clinton correct. Um, he had like twenty six thousand pages published in the regis. Second to him was Jimmy Carter, whose presidency the term was coined after, um because he he just took this old

fashioned tool to a brand new level. Um. But yeah, Clinton signed the c r A in the law right right, which basically repeals new regulations, allows Congress to repeal these new regulations with the simple majority in the House and Senate, and it still requires the president's signature though, so so

it only works sometimes. And the only time that it works is when the president and Congress are controlled by the same party, right, um, Because if you have a president who is coming in and Congress is of an opposite party, Congress isn't going to take up the c r A to repeal anything because they were with the

old president, right right. And then if you have a president who's carrying on the same party from the old president and Congress is new and of the their party, they may take up, you know, moves to repeal anything, and the president is not going to sign off on it, right, And which explains partially why it hasn't been used that often. Um, even though in two thousand one that was the case, I think it was only used one time officially to repeal one of Billy Boys. Yeah, to repeal a regulations

that would prevent repetitive workplace stress injuries. Interesting, yeah, um. I think one of the things that I thought was interesting when I was reading this was one of the reasons, because I thought, you know, why is it so easy to get these laws pushed through with the final you know, final minute. And that's exactly why. It's because this uh they're overloaded with um you know, like you said, twenty six thousand pages, but they're not given any extra staff

or anything. And I think I read UH one stat on one of these environmental laws that the Bush is working with the e p A for UM. They did the average time and it was nine seconds for the amount of employees that he had in the amount of comments. Nine seconds to read one of these comments and respond to it. Yeah, they went to two hundred thousand public comments on one new piece of regulation in four days. So that kind of answers your question why it's easy

to get these things through. Yeah, because don't forget the o I r A is part of the Office of Management and Budget, which is a White House office. The federal agencies are directed by the president. UM, the the the group in charge of reviewing these proposals are directed by the President. It's basically the executive branch running the show on this new regulation. And you know that it is it's very easy to get pushed through, and like I said, it's very cynical use of power. And president

is no longer accountable. Another proposal for any midnight regulation is not to allow the president to propose any more regulation during the midnight period, Like you can't make new laws anymore. Sorry, you've been you know, you've either served both your terms and somebody else has been selected, or you've been ousted because someone else has been selected. Either way,

your presidency technically ended in November five. Yeah, I think that would be more effective because basically what you would do there is you would have a president who I think a lot of times administrations kind of hold these in their back pocket because they know why trying to introduce its law when it can be debated and when I can be impeached. Yeah, when I can be impeached, when I'll just kind of hang onto this and tell him on my way out and then just kind of

sneak it through the back door busch. Actually, um, I heard it called the an eleven o'clock regulation flurry. Yeah, because he his chief of staff, Joshua Bolton, apparently sent a memo out to all agencies saying, if you want new stuff, uh, in prepared by June one, so we can have it passed by November one, which is well before the deadline. Well, I think they did that because UM, President Clinton famously did not get his through within the sixty day period. He waffled until the end, and he

did well. He was busy with defending himself a lot of that time. That is not making excuses, but there was a lot going on in his final years. Let's just say that. Yeah, yeah, that's absolutely true. So yeah, he didn't get his end on time, and so President Bush is able to come in and get a lot of those turned back. Well he he Bush, like Clinton and Reagan, UH issued an executive order that says just anything that's under review right now that hasn't been published

in the Federal Register, it's suspended. But you can't you can't just see that. You have to. You're fighting a political fight a lot of times. When Busch came in, one of the things that Clinton had left for him was UM a new regulation on acceptable arsenic levels in the water supply and UM just one that was just one of them. Yeah yeah, yeah, UM. But you know they would have an impact on business, and UM, as

we all know, Bush is so pro business. You could also make an argument that he's anti consumer UM and he's just always kind of been on the side of business, right. Uh, he didn't like how it impacted things like mining, the mining industry, water. Um, the water boards who would have to you know, step up their their water purification, not waterboarding. Don't get confused that later. Um. So uh, he basically said this one in particular suspended, and I'm going to

fight it to the death. And he spent a lot of political capital after he came in fighting this regulation that he ultimately had to bite and you know, except and he ended up eating eight percent of them. And I think he was on record saying that he that was a big mistake on his part, correct, because he became painted as a basically an anti environmentalist from the get go. But that's not necessarily to say that. Um, that wasn't a deserved reputation from what he's doing right now.

Right most of and if you go to this pro public A site, most of the midnight regulations he's trying to get through have the letters E. P. A at the front of him. So, um, regardless of what side you're on, they are environmental issues, yes, yes, trying to stay fair and balanced here, I could read a few of them to you just by title. We won't get into the because it would take too long. But UM

power plants be exempted from installing pollution controls. Uh. The e p A may ease restrictions for power plants near national parks. UM e p A may allow certain hazardous waste to be used as fuel. I read another one about rocket fuel being allowed in drinking water. Uh. Fisheries have been doing a lot of research on fisheries right now because I'm writing about fishing quotas and UM, there's a lot of work being done to basically allow to push the science out of it. As far as studying

fish populations. Yeah, there won't be any independent scientific review right right. It's basically saying, deciding whether it has an environmental impact, Well, the fisheries are going to be deciding that. And I think we all know the fisheries are probably gonna say, hey, let's keep fishing. Well let's I read somebody who's part of a special interest fishing fishery group who's saying, no, no, that's not true. Well, we'll self regulate. But I think it's one of those things that's yet

to be seen. Yeah, I'm a bit of a cynic when it comes to things like companies self regulating themselves. Yeah, there's not a lot of proof over the years to kind of you know, back that up. I got another one for you. Financial planners will no longer have to disclose any conflict of interest in the advice they give to anybody. It sounds like a good idea. Yeah, that's a good one. Um. And there's one called the right

to conscience uh rule. Basically, it says that if you are a healthcare provider, you you can't not hire somebody if they would refuse to provide birth control, which basically then you know you have you have protection. It's the right to conscience is based on abortion, and a doctor can refuse to you can't force somebody to perform an abortion.

In other words, they have a right to conscience. This so basically this extends that to contraception, which now kind of equates contraception with abortion, which has a lot of people a little nervous, right, And I think this I don't think it's the same one, but it's another one has to do with abortion. It's federally funded institutions can turn people down for an abortion, um, for moral and religious reasons. Yeah, I think that's part of the same

one as pretty expansive. Yeah, yeah, so, um, there's a lot of stuff. We have a lot of a lot of big changes to look forward to. I also heard there's some oil drilling going on now in a polar bear habitat um. But uh, yeah, we'll look to see what Obama can do because you know, a lot of these things very much fly contrary to things he's publicly

said he opposes. They they fly in the face of his views, but he may have a hard time doing it because Bush did it write it sounds like, yeah, I think regardless of what political spectrum, what side of the spectrum you fall on, it's just fascinating to look at the push in the poll of the transition, you know,

between administrations. It's fascinating. It absolutely is. And also, if you think about it, what Bush did with the right to conscience thing, he basically just set Obama up for a a national fight about abortion right out of the gate. So it's gonna be really interesting to see how it's handled. Because he didn't have enough to worry about. Here's this too. Yeah, so midnight regulations there you have it. Yeah, and you know what time it is, right, it is time Josh

for listener mail. Alright, so what do we have. I've got a few quick ones today. I've got a couple of corrections because we get stuff wrong people. You might not realize that this is largely unscripted. So we'll bring up something we didn't even know we were going to bring up, and sometimes we don't have the exact fact on that, so we count on the listener to point us in the right direction. Sometimes. Yeah, that's exactly what

happens in this case. Darryl Kowowski of Denver send us a message about the O c D podcast, and he says he wants to make a correction on something about when I mentioned Chris Jackson the basketball player uh changed his name to uh Mammad Abdulla rauf In, and he actually had Taurette syndrome, not O c D. There's kind of a big difference. Uh, actually there's not really. Yeah, so I will school you like a school darrel in my email reply, or like Chris Jackson at school, both

of us in basketball. Yeah, but actually I'm not bad. Alright, I'm pretty sure Chris Jackson could. Yeah, well, if he's done tying his shoes, which was part of the problem. Tourette's and o c D actually are often misdiagnosed as one to the other because they have a lot of the same symptoms. So one of his deals was he spent so much time trying his shoes or to hit the perfect shot be where he left the court. So that was actually Turette's at work. But they're very similar

in some minds. Hey, brief aside, have you ever seen the documentary Twitch and Shout. No, It's about Turette's and it is one of the best documentaries I've ever seen in my life. Add that to my cue. Yeah, I have another one. Um on guerrilla gardening. Someone wrote in from the Netherlands, our friends in Holland. Dave Inn says that Josh's comment on Bowery being a Dutch farm is wrong. Uh that was true in the old days, but that word is long gone basically in the Netherlands, and now

the word for farm is uh pronounced. Gave me an English pronunciation. I think it is borderie, border eye or borderie, and that's what a farm is now in the Netherlands. I need to brush up on my Dutch. So we were wrong. Now I could I could really make my way in like, you know, sixteenth century, never the Netherlands. You well, apparently now they'd be like, what the hell

are you talking about? Right, And I've got a final quick one from our fan, Devin Wallace wrote in Basically he was one of these guys that right, Simon says, hey, you say my name on the air, and I wrote him back and said, no, no, Devon, that's not how it works. You need to give me something. So I requested that Devon, right, a hi ku And if you did that, then we mentioned so here's the hiku mountains and verse. Red squirrels hiding in trees, huge rocks in

the park. Beautiful And depending on whether you think squirrel is two syllables or one, I'm debating his well, I say one syllable, in which cases is not a hiku. Oh just roll would make it a hi k? Yeah, hi Q. We'll go with that. We'll go with that, right, So thanks Devin for the hiku. Now, well done, squirre roll, squirre roll. Well, if you want to learn more about squirrel rolls, um midnight regulations of course, and actually we

have a great video on turettes on the site. You can find all that stuff at how stuff works dot com. For more on this and thousands of other topics. Is it how stuff works dot Com brought to you by the reinvented two thousand twelve Camray. It's ready, Are you