Obama’s Midnight Regulation Express
The goal is to issue more rules than the new administration could ever repeal.
At a White House press conference, Dec. 16.
Photo:
Associated Press
Notice the growing and many ugly ways the Obama administration is actively working to undermine a Donald Trump presidency. Unnamed administration sources whisper stories about Russian hackers to delegitimize Mr. Trump’s election. These whispers began at about the same time Hillary Clinton officials began pressuring electors to defy election results and deny Mr. Trump the presidency. How helpful.
Trump transition-team members report how Obama officials are providing them with skewed or incomplete information, as well as lectures about their duties on climate change. (No wonder Mr. Trump is bypassing those “official” intelligence briefings.) The Energy Department is refusing to provide the transition team with the names of career officials who led key programs, like those who attended U.N. climate talks. Sen. Ron Johnson recently sent a letter to President Obama voicing alarm over “burrowing,” in which political appointees, late in an administration, convert to career bureaucrats and become obstacles to the new political appointees.
But perhaps nothing has more underlined the Obama arrogance than his final flurry of midnight regulations. With each new proposed rule or executive order, Mr. Obama is spitefully mocking the nation that just told him “enough.”
The technical definition of a midnight regulation is one issued between Election Day and the inauguration of a new president. The practice is bipartisan. George W. Bush, despite having promised not to do so, pushed through a fair number of rules in his final months. But Jimmy Carter and Bill Clinton were more aggressive, and Mr. Obama is making them look like pikers.
Mr. Obama has devoted his last year to ramming through controversial and far-reaching rules. Whether it was born of a desire to lay groundwork for a Clinton presidency, or as a guard against a Trump White House, the motive makes no difference. According to a Politico story of nearly a year ago, the administration had some 4,000 regulations in the works for Mr. Obama’s last year. They included smaller rules on workplace hazards, gun sellers, nutrition labels and energy efficiency, as well as giant regulations (costing billions) on retirement advice and overtime pay.
Since the election Mr. Obama has broken with all precedent by issuing rules that would be astonishing at any moment and are downright obnoxious at this point. This past week we learned of several sweeping new rules from the Interior Department and the Environmental Protection Agency, including regs on methane on public lands (cost: $2.4 billion); a new anti-coal rule related to streams ($1.2 billion) and renewable fuel standards ($1.5 billion).
This follows Mr. Obama’s extraordinary announcement that he will invoke a dusty old law to place nearly all of the Arctic Ocean, and much of the Atlantic Ocean, off limits to oil or gas drilling. This follows his highly politicized move to shut down the Dakota Access pipeline in North Dakota. And it comes amid reports the administration is rushing to implement last-minute rules on commodities speculation, immigrant workers and for-profit colleges—among others.
Any action that is rushed is likely to be shoddy, especially if it’s from the federal government. The point is for Mr. Obama to have his way and to swamp the Trump administration with a dizzying array of new rules to have to undo. That diverts manpower from bigger and better priorities.
President Obama is hoping this work will prove too much and his rules will stand. He’d be making a good bet. George W. Bush promised to undo last-minute Clinton regulations. Yet a paper done in 2005 by Jason M. Loring and Liam R. Roth in Wake Forest Law Review found that a whopping 82% were left to stand.
Then again, a Republican Congress seems ready and willing to invoke the Congressional Review Act, which allows legislators to reject rule-making. More important, Mr. Trump and his team seem to understand that Americans are angry at Mr. Obama’s tendency to rule like an autocrat. They also surely know how damaging many of these Obama parting gifts (particularly energy rules) will prove to their own agenda.
A Trump administration could send a powerful message to future presidents and build public support by highlighting the “midnight regulation” phenomenon and then making it a priority to ax every final Obama order. Single them out. Make a public list. Celebrate every repeal. That would be as profound a rebuke to the Obama legacy—a legacy based on abuse of power—as any other.
