Empower Wisconsin | Jan. 21, 2021
By Robert Verbruggen, National Review
Each time a new party wins the White House, the administrative state changes gears. Democratic presidents try to undo everything Republicans accomplished, and vice versa. And since Congress has delegated vast swaths of policymaking to the executive branch — environmental regulations, labor rules, etc. — these changes can be immensely consequential.
A somewhat amusing side effect of this process is the tradition of “midnight regulations”: In a frantic rush between an election and a new administration from the other party, the old president and his minions rush to finalize everything they possibly can, cutting whatever corners need to be cut. This creates some extra work for the next guy to undo, which can take a while, because the official rulemaking process can be a pain. The Trump administration undertook this task with a special zeal, leaving Biden and Co. with a tangled knot of new regulations to deal with.
Here are a two fun examples.
At the Department of Health and Human Services, officials thought it should be standard practice to formally reassess all regulations every so often, and indeed that regulations should automatically die if they are not reviewed this way. It’s not a bad idea, but unfortunately they didn’t get the new procedure in place until they were on their way out the door. Fortunately, though, they finalized the rule in time for the Biden administration’s arrival. As Georgetown’s Andy Schneider summarizes, the brand-new “SUNSET” rule
requires HHS to “assess” and, if necessary, “review” almost every regulation every 10 years. The purpose of the “assessment” is to determine whether the regulation has “a significant economic impact upon a substantial number of small entities.” If it does, then the agency must conduct a “review” to determine whether the regulation should be rescinded, amended, or preserved. If a regulation is not “assessed” or, if necessary, “reviewed” every 10 years, it automatically expires. The rule gives the agency five years from enactment to complete the first cycle “assessments” and “reviews.”
Starting March 22, if this rule is still in effect by then, HHS has to actively monitor thousands of sections of the Code of Federal Regulations or risk their being invalidated.
As Schneider points out, while midnight regulations are hardly a novel development, it’s less common to make a procedural regulation this way — one that doesn’t set a specific policy but rather governs the way the agency makes policy. It’s an innovation in bureaucratic warfare.
Another example comes from the Department of Homeland Security. BuzzFeed reported last week that the agency had signed curious agreements with the states of Arizona, Louisiana, and Indiana, as well as the Rockingham County Sheriff’s Office in North Carolina. The agreements “would require the DHS to provide notice of immigration policy changes and allow the jurisdictions six months to review and submit comments before the agency moves forward with any of the proposed changes.” (The jurisdictions, in return, promise to help DHS enforce immigration law.)
Read more at National Review.