Christopher Carlberg · June 2009
77 GEO. WASH. L. REV. 992 (2009)
After serving either four or eight years as the most powerful person in the world, no President of the United States likes to think that his influence will suddenly vanish on his successor’s Inauguration Day. History has shown that most presidential administrations exert great effort in their final three months in office to promulgate a dramatically increased number of federal regulations that reflect the President’s policy objectives. These “midnight regulations” have been strongly criticized on many fronts. The most salient criticism of midnight regulations is that the President and the executive branch cannot be held politically accountable for the regulations they pass as they are headed out the door. This lack of political accountability leads to controversial regulations and undercuts one of the rationales supporting important Supreme Court administrative law doctrine. A presidential administration can work to pass any regulation it wants until leaving office, and it is up to the next administration either to work to amend the regulation or to administer the regulation.
In June of 2008, the Bush Administration released a memorandum imposing a moratorium on federal regulation promulgation during its final three months in office. The “Bolten Memo” was written by President Bush’s Chief of Staff Joshua Bolten and was directed to the heads of the various federal agencies. If followed, the policy behind the Bolten Memo would ensure that a presidential administration would not pass any regulation for which it would not be held politically accountable. This type of policy would increase the effectiveness of the regulatory process and support Supreme Court jurisprudence. Further, this policy would help conserve federal agency resources.
Part I of this Essay will describe the phenomenon of midnight regulations and how they are passed in the final months of a presidential administration. Part II will discuss the Bolten Memo and its effect on political accountability. Part III will examine the Chevron doctrine and how its deferential approach is partially supported by the rationale that the President can be held politically accountable for unfavorable policy decisions. Finally, Part IV will argue that the policy behind the Bolten Memo could be a beneficial development in administrative law.
