A Mid-Term Grade for the Bush Administration: The Administration Has Shown a Strong Commitment to Developing More Cost-Effective Regulations, but Its Commitment to Federalism Appears Mixed
Mannix, Brian, Regulation
CHANGING THE DIRECTION OF FEDERAL government policy is no simple task, even if you focus just on the executive branch, and even if you are the president, in whom all executive power is constitutionally vested. In addition to making wise appointments, the president must monitor and manage the departments and agencies. Every president since Richard Nixon has had some central process within the Executive Office of the President to review federal regulations and provide policy guidance and feedback to the agencies that issue them.
When President George W. Bush entered the White House, it was clear to observers that he wanted to pursue a different regulatory review philosophy than his predecessor. (See "The Clinton Regulatory Legacy," Summer 2001.) So what has the Bush administration done since arriving in Washington? What grade should we give its performance? By examining the administration's use of the regulatory review process, we can evaluate its attempts to change regulatory policy and the principles it uses to resolve controversial questions.
In the final weeks of the Clinton administration, federal regulatory agencies hastily issued a large number of controversial rules. On the afternoon of January 20, 2001, Bush chief of staff Andrew Card issued a memo freezing those "midnight regulations" pending review by Bush appointees.
One such regulation was the Occupational Safety and Health Administration's ergonomics standard. The Bush administration did not challenge this standard directly; instead, Congress quashed it in a rare--indeed, the only--use of the Congressional Review Act, which gives Congress a fast-track opportunity to overturn an administrative regulation before it becomes effective. The ergonomics standard had strong union support but was very costly and of doubtful effectiveness, and it had numerous opponents in Congress.
The Bush administration's cooperation was essential in overturning the ergonomics rule. An incumbent president typically would veto any bill that reversed his own administration's regulatory decisions; hence, the Congressional Review Act is likely to be effective only during a presidential transition, when both the new Congress and the new president may share a desire to repeal a specific regulation.
Another midnight regulation that was a tempting target for the Congressional Review Act was the Environmental Protection Agency's Total Maximum Daily Load (TMDL) rule. (See "The Trouble with TMDLs," Spring 2001). The TMDL rule requires states to set water quality standards for waterways and develop policies to limit discharges in places where the water quality is below standard. The rule had drawn criticism for expanding EPA's controversial discharge permit regime and for constraining the development of an allowance market for discharges. Like the ergonomics standard, the TMDL rule had numerous congressional opponents; however, a second attempt to use the Congressional Review Act to block the regulation was unsuccessful. The TMDL rule and other last-minute rules were left for the Bush administration to address.
The quick action by the Bush administration to halt the implementation of TMDL and other Clinton midnight regulations and provide for future review represented a good start, and at least provided the opportunity for his appointees to assert control over the regulatory process. However, after two years, Bush's appointees have made few major changes to the regulatory initiatives begun in the final months of the Clinton administration, nor have they successfully changed the terms of the debate. It is probably true that, under Bush, some of the midnight regulations will be implemented with more deference to federalism and private property than would have been the case under Clinton, but that is difficult to document.
GUIDANCE TO AGENCIES
All recent presidents have issued executive orders to establish the principles by which regulatory decisions will he made, as well as the procedures for reviewing regulations. …