Turn Out the Lights on “Midnight Regulations”

Bill Clinton once declared the era of Big Government over. Despite that, his Administration is burning the midnight oil to enact a wealth of new regulations before he leaves office. These new rules will make Big Government bigger than ever.

Clinton is pushing “midnight regulations.” A study by Jay Cochran of the Mercatus Center finds that, since 1948, the pace at which regulations are enacted rises an average of 17% during a president’s final days – a percentage that is usually higher if the incoming president is of another political affiliation.1 These regulations do not require congressional approval.

Midnight regulations got their name during the final days of the Carter Administration. Between November 1980 and January 1981, Carter rushed into place 200 new regulations adding 24,531 new pages to the Federal Register.2 It was called a “binge” by one member of the incoming Reagan Administration,3 and prompted Ronald Reagan to call for a 60-freeze on their enforcement.4

Clinton plans to beat the Carter record. He is expected to added a total of 29,000 pages of new rules to the Federal Register, including regulations governing endangered species, organic food labeling, fuel additives and land use.5 The Environmental Protection Agency alone is expected to issue 88 new regulations with a projected impact on the American economy of $100 million.6

Already, ergonomic requirements for workplaces issued in November added 1,700 new pages to the Federal Register and are predicted to cost businesses $100 billion in office and factory redesign.7 Organized labor lobbied for these new requirements for years, claiming they will increase workplace safety. The U.S. Chamber of Commerce, which is part of a lawsuit over them, calls the new rules vague and unconstitutional. Chamber spokesman Frank Coleman told the Washington Post, “There are more legal meters running in [Washington, DC] preparing to fight anti-business regs in the closing days of the Clinton Administration than there [were] attorneys [working on the ballot-counting] in Florida.”8

Those regulations will be difficult for the Bush Administration to repeal. It’s not something that can be done with the stroke of a pen. Reagan tried, but was rebuked by the Supreme Court in 1983 for acting in an “arbitrary and capricious” manner when he tried to overturn automotive regulations.9 Instead, the entire regulatory process of hearings, public comments and legal review – which could take years – is required.

But the problem remains that many of the regulations Clinton is rushing still need more consideration.

In the case of organic food labeling, a record number of public comments were submitted to the government earlier this year regarding a proposal to put a U.S. Department of Agriculture seal on organically-grown food. Many believe the certification would serve as an endorsement of organic agriculture, and would be used to smear genetically-modified foods and other modern farming techniques. A poll conducted for The National Center for Public Policy Research found 68% of the public would consider government certification of organic foods as a sign that those foods are safer to eat, and 69% would consider certification to mean that organic agriculture is better for the environment.10 Contrary to these notions, organic agriculture needs more land and is detrimental to soil preservation. In addition, a University of Georgia study found organic produce has levels of E-coli bacteria that are much higher than non-organic counterparts.11

Proposed regulations to address declining salmon populations are expected to have a profound and detrimental effect on the economy of the Pacific Northwest. Taxes could rise to fund salmon restoration programs, and restrictions on land use could severely affect the timber, housing and agricultural industries. The ability of individuals to maintain their lawns or wash their cars could also be restricted because these actions might be considered to have a negative impact on the salmon population. Critics believe the government is ignoring natural trends, like ocean temperature cycles, that have more of an effect on salmon populations than human intervention.12 By rushing regulations into place before all of the scientific facts are given due consideration, the Clinton Administration could devastate the region’s economy and put people out of work for no valid reason.

After the election debacle in Florida and the prospect of an economic downturn around the corner, President-Elect Bush faces a daunting challenge in leading the nation during the next four years. Clinton’s “midnight regulations” are only going to make that job harder.


David W. Almasi is the director of publications and media relations for of The National Center for Public Policy Research, a Washington, D.C. think tank. Comments may be sent to [email protected].

Footnotes:1 Jay Cochran III, “The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters,” Mercatus Center, George Mason University, Arlington, Virginia, October 9, 2000.
2 Cindy Skrzycki, “The Regulators: The Party’s Almost Over,” Washington Post, November 7, 2000, p. E1.
3 Dan Morgan, “Clinton’s Last regulatory Rush,” Washington Post, December 6, 2000, p. A1.
4 Susan E. Dudley and Wendy J. Gramm, “Something Wicked This Way Comes,” Atlanta Journal, July 27, 2000.
5 Morgan.
6 Sean Paige, “Clinton Cranks Out Last-Minute Executive Orders,” Insight, December 11, 2000, p. 47.
7 Ibid.
8 Morgan.
9 Ibid.
10 John K. Carlisle, “Organically Grown Food Not Necessarily Better for You,” National Policy Analysis No. 290, The National Center for Public Policy Research, Washington, DC, June 2000.
11 Ibid.
12 John K. Carlisle, “Nature, Not Man, is Responsible for West Coast Salmon Decline,” National Policy Analysis No. 254, The National Center for Public Policy Research, Washington, DC, July 1999.

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