The one foregone conclusion about the outgoing Bush Administration on the part of the media was that the amount of last-minute pardons would be sizeable, and their content would be controversial. Click here for a compiled list of journalists and others assuring readers this would happen; it’s a great illustration of how hard we were all hyperventilating about pardons in these final weeks.
But it was a frightening thought. Bush has a lot of nasty friends, but the scariest scenario was that Bush would proactively pardon himself and others in his administration to avoid later prosecution on a host of illegal activities allegedly carried out over the past eight years.
Instead, Bush’s last act in that arena was to commute the sentences of two border guards who shot a drug dealer and proceeded to hide the evidence of their actions. Now that Elvis has officially left the building, we can say with surprise that the consensus was flawed.
Because of the chilling legal implications of the imaginary preemptive pardon scenario, many are happily relieved that the former president decided to forgo his right to issue pardons to his own administration. In fact, Bush didn’t use his pardon power nearly as much as he could have. The Wall Street Journal notes that Bush’s 200 pardons and commutations over eight years are the fewest in modern history.
However, some note Bush’s preeminence in a different type of last-minute preemptive pardon program. Federal agencies under Bush have pushed through so many last-minute rule changes that it amounts to a large scale pardon of industry and bad regulators. Though we haven’t yet seen the historians weigh in on the issue, the Bush Administration’s use of so-called midnight regulations has been deemed “unprecedented.”
The term “midnight regulations” was coined after agencies in the Carter Administration pushed through a huge amount of federal rule changes after Carter lost reelection but before he left office. However, the practice itself dates back further and is especially pronounced when executive power changes party hands.
The investigative news team at ProPublica.org put together a handy (though long) list of all of Bush’s midnight regulations, and their current status, on their Web site. It’s worth a perusal, since the list includes so many offensive changes to the way our country functions that there’s something for everyone to get upset about.
“Regulations” is a funny word when applied to Bush’s midnight moves, since the majority of the proposed rule changes include a loosening of laws — most often those protecting the environment and American workers — in favor of industry. However, one widely reported new rule does impose more regulation, protecting healthcare workers’ rights to deny women family planning care on the basis of their own personal beliefs.
I’d wager that part of the reason historians haven’t chimed in with a tally of where Bush stands in his zeal for changing law without Congressional input is that the final number of permanent regulations isn’t solid yet. Bush did learn from his predecessor and requested that changes be submitted early enough to take effect before the Obama Administration took over, making the changes harder to overturn. But there is still a chance that many of Bush’s late-term changes won’t make it to maturity.
There are several options for the incoming Obama Administration. Just hours after the baton was passed, White House Chief of Staff Rahm Emanuel signed an order to halt all pending rules so that they can be reviewed by Obama’s staff. This has the effect of freezing the federal register, the government’s official list of rules on which regulations are recorded.
Also, the Justice Department could go after the new rules with lawsuits, which is happening in the cases of new mountaintop mining and endangered species rules.
Another tool is the Congressional Review Act, which allows Congress to look over new federal regulations for 60 days before they take effect and to overturn them by joint resolution. The act has only been used successfully once, by President Bush to recall a Clinton Administration rule change requiring ergonomic standards in the workplace. With a majority of Democrats in Congress, this may prove to be more useful for Obama than other presidents have found it to be in the past.
Plans of Senate Majority Leader Harry Reid (D-NV) have recently leaked to the press, including a new bill which will “return the government to the people by reviewing controversial ‘midnight regulations’ issued in the waning days of the Bush Administration.” As ProPublica notes, it is unclear how this legislation differs from the Review Act, but it is good to know that overturning these midnight regulations is a priority for the new Congress.
Furthermore, Rep. Jerry Nadler (D-NY) is reintroducing his Midnight Rule Act, which would push back the Congressional review timetable to include any rule proposed or finalized after Oct. 22, giving Congress 90 days instead of 60. Nadler had also introduced legislation to prevent Bush from pardoning himself or other senior administration officials. Maybe we should just be glad that we didn’t have to take that tool out of the box?
But just because Bush didn’t pardon himself, Cheney, Gonzales or any number of scofflaws in his administration doesn’t mean we should let him preemptively pardon polluters, drug companies, lazy regulators, or anyone else who wants to ruin our country for financial gain and ideological dogma.
A BUZZFLASH NEWS ANALYSIS