Stuff You Should Know - How Midnight Regulations Work

Episode Date: January 1, 2009

After the election in November, outgoing Presidents have an opportunity to pass last-minute (often unpopular and unpublicized) legislation as 'midnight regulations.' Learn more about midnight regulations in this HowStuffWorks podcast. Learn more about your ad-choices at https://www.iheartpodcastnetwork.comSee omnystudio.com/listener for privacy information.

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They just have way better names for what they call, like what we would call a jackmove or being robbed. They call civil acid. Be sure to listen to the war on drugs on the iHeart Radio App, Apple Podcast, or wherever you get your podcasts. Brought to you by the reinvented 2012 Camry. It's ready, are you? Welcome to Stuff You Should Know from HowStuffWorks.com. Hey and welcome to the podcast. I'm Josh, Chuck's here. I am, as always. How's it going? You're the Andy Richter to your Conan O'Brien, as I like to say. I look a little more like Andy Richter.

There's no Conan among us. No, no tall, seven foot tall, lanky, red-headed Irishman yet. Pale. Man, that man is pale. He is. Yes, but okay, so this is Stuff You Should Know if you couldn't tell by now. And we're going to 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 leaving the White House and a new one's coming in, there are transition teams set up, right? Right. Basically, you have a bunch of people who've been doing their jobs, you know, directing federal agencies, carrying out new policy, talking about new policy ideas, and they basically need to pass this information on to the next administration.

Right. So that, you know, there's a smooth transition of power. Right. This is ideal. Ideally, this is what happens. Right. They don't just put it in a folder called how to be the president and leave it on the desk. No, that would be really, really bad. Yeah. And, you know, some, some transition teams are more successful than others. President Bill Clinton had a terrible, terrible time with it when he came into power. When he was leaving, though, he gained a little more confidence. When he left, George W. Bush, the second Bush, took over. Right. And when his transition team showed up, they found, 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 hysterical. It really is hysterical. You know, just, just the thought of, and not politically speaking, but just the thought of a president playing a practical joke on the next one. Yeah. And all of his aides and, yeah. And there was a whoopee cushion left in the chair of his office chair. Right. Yeah. Kick me, sign. Right. So, so that was awaiting President Bush when he took over. And there was a lot of other stuff awaiting him as well in the form of midnight regulations. Yes. Clinton actually published 26,000 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. Right. So,

so, well, before we get into that, how about what, what are midnight regulations? What's the definition? Well, I'm just going off my brain here. I don't have a definition to read, but it's basically legislation that a president, a leaving president will try and 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. Yeah, until the inauguration. And every, every presidency has a midnight, right? There's, there's the end of a presidency. It's those last few months. 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. Right. And they just, they do everything they can to sabotage one another. So it's kind of rough. It's so unfriendly and it's hostile. Yeah, it is. It's a little disheartening. Yeah. So, but not surprising. And basically, you know, if you, if you, if you leave thousands of pages of new regulations, 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. Right. You could be doing it to hamstring or handicap the next, the next administration. Right. Basically tying their hands, especially when it's, you know, when a Democrat's taking over from a Republican or vice versa, you know, the views run so contrary supposedly that,

you know, you want to keep the policy making going. Right. And it's actually with a midnight regulation, it's actually exceedingly difficult to reverse. Right. We'll get to that in a minute. Right. 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. It's just amazing that the last two months of an eight year, ten year can have more of an impact than the previous, you know, seven and seven years and ten months. Yeah. Well, the weird thing is it's, it's, it's, you can sit there and watch midnight regulation going on, right? There, there, but it's not an openly acknowledged activity. Right.

Okay. So to prove that it exists, some political scientists have actually done studies on the federal register. The federal register is the complete comprehensive guide to federal regulation. Right. And they publish, actually they publish addendums to it every day. So some, some political scientists went back and looked at when, you know, the amount of pages published in the federal register. Right. Per quarter. Per quarter. And they found that in the midnight of a presidency, especially during the transition of power from one party to another, the pages, the page volume increases like 17%. So it's odd to think that you would have to go prove it. But, you know, the, the president's like, well, I'm just going about my midnight regulation

right now. Right. It's, it's such a cynical and sinister, democratically speaking tool. Because the president's no longer accountable. Right. Yet so many people don't even realize it's going on. No, no. And it's, it's going on right now. I know you have a, a couple of things you wanted to mention. Right. Yeah. I mean, I've got a list. There's actually a great website called ProPublica.org. That's PRO-Publica.org. And you can get a full list there of the midnight regulations that President Bush is trying to get through and not draw on 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 open for comment or closed 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 will. Let's, let's, let's talk about how it works. Right. So basically, the legislative branch identifies a problem and says, well, we could create this agency to address that problem, say the environmental protection agency or the securities and exchange commission or whatever the FDA 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. Right. And how that's carried out is, is left pretty much to the discretion of the president. Congress can threaten to withhold funding or

something like that. 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 agencies should act. Right. So if you have a really pro business president, they're probably not going to give the SEC a lot of power. Right. And if you have somebody who's very much a pro consumer, the SEC will likely, you know, look out for investors more correct 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. Yeah, big time. You know, I mean, like the, the EPA, you and I have to go get admissions tests every

year before we get a new tag. Right. That's the EPA. That's a federal, you know, regulation. We can't run around, you know, shooting heroin between our toes. DEA looks out for that kind of thing. Then there's just a lot more like profanity on television. That's the FCC. Right. 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. Yes. Okay. That's a good way to say it. Thanks. Thanks a lot. I appreciate that. In 1968, five black girls dressed in oversized military fatigues were picked up by the police in Montgomery, Alabama. I was tired and just didn't want to take it anymore. The girls had run away

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Miami. Listen to Murder in Miami on the I Heart Radio app, Apple podcasts, or wherever you get your podcasts. So okay, so we're impacted by this. And a president's views will direct how much we're impacted. Right. Okay, so these new rules are created. The Office of Information. Information and Regulatory Affairs. They review these things, right? Exactly, especially if it's big money involved. Yeah, $100 million impact or more on the economy annually. Right, that's when they get, you know, special attention. Right, right. So the OIRA 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 to see if these things are cost, with the cost benefit analysis. Sure. They're supposed

to look if the rules even needed. Right. If there's any way to, you know, use market forces to stimulate the change that these rules are meant to address. Right. 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 supposed to take a lot of time. Oh, yeah. If the OIRA signs off on the thing, an announcement gets published, and they actually publish an announcement in the Federal Register when they're first considering it, then they publish another announcement saying what the outcome was. Right. Once they, once the OIRA signs off on it, and it's published in the Federal Register, either 30 days for kind of smaller things, 60 days for big regulation,

then it becomes law. Right. And that 60-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 through quick enough, the 60 days is up before the next President comes in. 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. Right. You have to provide studies. You have to provide alternatives. The President doesn't just come in and wave his or her magic wand. Right. And say everything my predecessor just said is wrong and it's gone. Right. Good try, but no. And that's actually been a proposal to solve Midnight Regulation is to allow incoming presidents to repeal

any law passed in the Midnight Period. Right. This is not necessarily the case. This has never been entertained as far as I know. Seriously. There are some things you can do as an incoming President, right, to stop this regulation. Right. What you got? So once it's, the new administration is in, they have to show that why repealing it is a good idea. Yeah. And a lot of times you have to provide an alternative form of legislation. Right. And then Congress actually has a tool as well called the Congressional Review Act, and this came about in 1996. Which is ironic because the President that signed that bill into law was the most prolific Midnight Regulator of all time, Bill Clinton.

Correct. He had like 26,000 pages published in the register. Second to him was Jimmy Carter. Right. Whose presidency the term was coined after because he just took this old-fashioned tool to a brand new level. Right. But yeah, Clinton signed the CRA into law, right? Right, which basically repeals new regulations, allows Congress to repeal these new regulations with the simple majority in the House and Senate. Yeah. And it still requires a President's signature though. So it only works sometimes. And the only time that it works is when the President and Congress are controlled by the same party. Exactly. Right. 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 CRA 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 other party, they may take up, you know, moves to repeal anything and the President's not going to sign off on it. Right. Which explains partially why it hasn't been used that often. Even though in 2001 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. 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 at the final, you know, final minute? And that's exactly why. It's because this, they're overloaded with, you know, like you said, 26,000 pages, but they're not given any extra staff or anything. Right. And I think I read one stat on one of these environmental laws that the Bush is working with the EPA for. They did the average time and it was nine seconds for the amount of employees that they had and the amount of comments, nine seconds to read one of these comments and respond to it. Yeah. They went to 200,000 public comments on one new piece of regulation in four days. Right. So that kind of answers your question why it's easy to get these things through. Yeah, because don't forget that OIRA is part of the Office of Management and Budget, which is a White

House office. Right. The federal agencies are directed by the president. 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, it is. It's very easy to get pushed through. And like I said, it's very cynical use of power. The president's 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. Right. 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 5th. 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 it as law when it can be debated. Or when I can be impeached. Yeah. Or when I can be impeached. Yeah. When I'll just kind of hang on to this until I'm on my way out and then just kind of sneak it through the back door. A Bush actually, I heard it called an 11 o'clock regulation flurry. Oh, really? Yeah. Because he, his chief of staff, Joshua Bolton, apparently sent a memo out to all agencies saying if you want new stuff in, prepare it by June 1st so we can have it passed by November 1st. Right.

So which is well before the deadline. Well, I think they did that because President Clinton famously did not get his through within the 60 day period. He waffled until the end, didn't he? He did. Well, he was busy with defending himself a lot of that time. Yeah, 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 was able to come in and get a lot of those turned back. Well, he Bush, like Clinton and Reagan, 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. Right. But you can't just do that. You have to, you're

fighting a political fight a lot of times. When Bush came in, one of the things that Clinton had left for him was a new regulation on acceptable arsenic levels in the water supply. Correct. And just one. That was just one of them. Yeah, yeah, yeah. But you know, it would have an impact on business. And as we all know, Bush is so pro business, you could also make an argument that he's anti consumer. And he's just always kind of been on the side of business, right? Right. He didn't like how it impacted things like mining, the mining industry, water, the water boards who would have to, you know, step up their their water purification. Right. Not waterboarding. Don't get confused. No, that came later. Right. So he basically said this one in particular is 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, accept. Right. And he ended up eating 80 percent of them. Well, I think he was on record saying that he that was a big mistake on his part. Correct. Yeah, because he became painted as a basically an anti environmentalist from the get go. But that's not necessarily to say that that wasn't a deserved reputation from what he's doing right now. Right. Most of and if you go to this pro public site, most of the midnight regulations he's trying to get through have the letters EPA at the front of them. So regardless of what side you're on, they are environmental issues. Yes, we 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 them because it would take too long. But power plants be exempted from installing pollution controls. The EPA may ease restrictions for power plants in international parks. EPA may allow certain hazardous waste to be used as fuel. I read another one about rocket fuel being allowed in drinking water. Fisheries have been doing a lot of research on fisheries right now because I'm writing about fishing quotas. Sure. And there's a lot of work being done to basically allow to push the science out of it as far as studying fish populations. 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 going to say, Hey, let's keep fishing. I read somebody who is part of a special interest fishing fishery group who is saying, No, no, that's not true. We'll self-regulate. But I think it's one of the 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 a lot of proof over the years to kind of back that up. I got another one for you. What's that? Financial planners will no longer have to disclose any conflict of interest in the advice they give to anybody. Sounds like a good idea. Yeah. That's a good one. And there's one called the right to conscience 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, right? Which basically then, you know, you have, you have protection. It's a 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, right? 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. I think this, I don't think it's the same one, but it's another one that has to do with abortion. It's a federally funded institutions can turn people down for an abortion for moral and religious reasons.

Yeah. I think that's part of the same one. It's pretty expansive. Yeah. Yeah. So 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. Right. But 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. Right. Or they, they fly in the face of his views. Right. But he may have a hard time doing it because, which did it right? 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 and the pull 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 national fight about abortion right out of the gate. Right. So it's going to be really interesting to see how it's handled because he didn't have enough to worry about. Exactly. Yeah. Here's this too. Yeah. So midnight regulations, there you have it. Yeah. It's a good one. And Chuck, you know what time it is, right? It is time, Josh, for listener mail. All right. So what do we have? I've got a few quick ones today. I've got a couple of corrections. Okay. 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, Darrell Kowalski of Denver sent us a message about the OCD podcast. Yeah. And he says he wants to make a correction on something about when I mentioned Chris Jackson, the basketball player, changed his name to Mamad Abdul Rauf in 1991. And he actually had Tourette syndrome, not OCD. There's kind of a big difference. Actually, there's not. Really? Yeah. So I will school you like a school Darrell in my email reply. Or like Chris Jackson at school, both of us in basketball. Yeah. Actually, I'm not bad. 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 OCD actually are often misdiagnosed as one to the other because they have a lot of the same symptoms. I guess. So one of his deals was he spent so much time tying his shoes or to hit the perfect shot before he left the court. So that was actually Tourette's at work, but they're very similar in some ways. Hey, brief aside, have you ever seen the documentary Twitch and Shout? No. It's about Tourette's. It is one of the best documentaries I've ever seen in my life. That's my cue. Yeah. I have another one on Gorilla Gardening. Someone wrote in from the Netherlands. Our friends in Holland. Dave N says that Josh's comment on Bowery being a Dutch farm is wrong. That was true in the old days, but that word is long gone, basically,

in the Netherlands. And now the word for farm is pronounced. He gave me an English pronunciation, I think it is, bordery, border eye or bordery. Yeah. And that's what a farm is now in the Netherlands. I need to brush up on my Dutch. So we were wrong there. I could. I could really make my way in like, you know, 16th century Netherlands, but you do well. Apparently now they'd be like, how long 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 writes in and says, hey, say my name on the air. And I wrote him back and said, no, no, Devin. That's not how it works. You need to give me something. So I requested that Devin write a haiku. And if you did that,

then we'd mention his name. And he did too, didn't he? So here's his haiku. Mountains and rivers, 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 haiku. Well, I say one syllable, in which case this is not a haiku. Oh, so the squirrel would make it a haiku. Yeah, a haiku. We'll go with that. We'll go with that. Right. So thanks, Devin, for the haiku. Yes. Well done. Squirrel. Squirrel. Well, if you want to learn more about squirrels, midnight regulations, of course. And actually, we have a great video on Tourette's on the site. Sure. You can find all that stuff at howstuffworks.com. For more on this and thousands of other topics,

visit howstuffworks.com. Brought to you by the reinvented 2012 Camry. It's ready. Are you? The War on Drugs is the excuse our government uses to get away with absolutely insane stuff. Stuff that'll piss you off. The cops. Are they just, like, looting? Or are they just, like, pillaging? They just have way better names for what they call, like, what we would call a jack move or being robbed. They call civil acid for it. Be sure to listen to The War on Drugs on the iHeart Radio app, Apple Podcasts, or wherever you get your podcasts. Attention, Bachelor Nation. He's back. The host of some of America's most dramatic TV moments returns with the most dramatic podcast ever with Chris Harrison. During two decades in

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